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COLLEGE  OF  PHYSICIANS 
AND   SURGEONS 


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THE    LAW 

IN    ITS    RELATIONS 

TO    PHYSICIANS 


By 
ARTHUR    N.   TAYLOR,   LL.  B. 

Of  the  New  York  Bar 


New  York 

D.  Appleton  and  Company 

1900 


Copyright,  1900 
By   D.    APPLETON   AND    COMPANY 


PEEFACE. 


IJpox  casually  looking  over  tlie  pages  of  a  current 
legal  journal  the  author's  attention  was  caught  by  the 
report  of  a  recent  case  in  which  a  physician,  not  under- 
standing his  rights  in  a  certain  matter,  had  violated 
well-established  legal  principles  and  was  held  by  the 
jury  to  respond  in  substantial  damages. 

The  ideas  suggested  to  the  mind  of  the  author  by 
this  case  were,  first,  the  necessity  that  the  physician 
be  informed  regarding  his  legal  rights  and  liabilities, 
and,  second,  the  inaccessibility  to  him  of  such  informa- 
tion— which  ideas  in  turn  suggested  the  plan  worked  out 
in  the  following  pages. 

That  portion  of  the  field  occupied  in  common  by  the 
legal  and  medical  professions  known  as  medical  juris- 
prudence has  received  the  attention  of  many  able  writers 
of  both  professions,  with  the  result  that  nearly  every 
question  of  law  requiring  elucidation  as  to  its  medical 
aspect  has  been  worked  out  and  is  accessible  to  the 
lawyer.  But,  upon  the  other  hand,  that  portion  of  the 
field  occupied  by  the  two  professions  which  relates  to 


iv       THE  LAW  IN  ITS  RELATIONS^  TO  PHYSICIANS. 

the  needs  of  the  physician  in  his  own  practice  has  heen 
singularly  neglected,  so  that  the  physician  is  left  with- 
out reliable  information  regarding  his  legal  rights  and 
liabilities,  and,  what  is  equally  serious,  without  the 
opportunity  of  having  recourse  to  such  information  ex- 
cept as  stress  of  circumstances  may  drive  him  to  seek 
legal  advice  in  some  particular  case. 

The  object  of  this  work  is  to  place  within  the  reach 
of  every  physician  a  systematic  treatment  of  those  ques- 
tions of  law  which  present  themselves  most  frequently 
in  his  ordinary  professional  work,  and  which  he  may 
at  any  moment  be  required  to  know;  and  to  show  the 
relation  between  the  different  questions  of  law,  together 
with  the  reasons  upon  which  they  are  based,  in  such  a 
way  that  the  ph3^sician  may  not  only  understand  his 
rights  in  a  given  case  which  has  been  adjudicated,  but 
will,  by  understanding  the  general  principles  upon 
which  those  rights  are  based,  be  able  to  apply  those 
principles  to  new  facts  and  conditions,  and  determine 
the  rights  and  accountabilities  of  the  several  parties 
interested  as  unexpected  or  uncontemplated  emergen- 
cies arise. 

A.  N.  T. 

32  Nassau  Street.  Nkw  York. 


CONTENTS 


CHAPTER 

Introduction 

I. — The  right  to  practise  medicine  and  surgery 
II. — Contract  of  physician  with  patient 
III. — Contract  of  patient  with  physician 
IV. — Rights  and  liabilities  of  third  parties 
V. — Right  to  compensation 
VI. — Recovery  of  compensation 
VIL— Civil   malpractice,   including   general 

OF  physician  to  patient 
VIII.— Criminal  liability      .... 
IX. — Privileged  communications 


liability 


FAQE 
1 

8 
59 
75 

80 
140 
171 

239 
385 
480 


THE  LAW 
IN  ITS  RELATIONS  TO  PHYSICIANS. 


INTEODUCTIOIT. 

Origin  and  Development  of  Our  Laws. — Our  system 
of  laws,  like  our  language,  was  brought  with  us  from  the 
mother  country,  where  it  had  slowly  developed  during 
the  centuries  that  saw  the  crude,  barbaric  Briton  become 
the  civilized  and  enlightened  Englishman. 

Like  the  Englishman  of  modern  times,  our  law  rep- 
resents not  alone  development  but  also  the  reception  and 
assimilation  of  foreign  material  from  widely  separated 
sources.  When  the  Britons  gave  way  to  the  more  power- 
ful Saxons  the  laws  of  the  Druids  commingled  with  and 
became  a  part  of  the  Saxon  laws  and  customs ;  the  sub- 
sequent arrival  of  the  Danes  brought  additional  ele- 
ments ;  afterward  the  invasion  of  the  Eomans,  and  final- 
ly the  conquest  of  the  Normans,  brought  much  of  the 
civil  law  of  continental  Europe  and  many  customs  for- 


2       THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

eign  to  those  of  our  northern  ancestors;  among  these 
was  the  feudal  system  upon  which  is  based  our  present 
law  of  real  estate.  Not  only  was  the  law  greatly  changed 
in  substance  by  this  latest  arrival,  but  in  outward  form 
as  well,  Norman-French  being  the  language  in  which 
all  public  proceedings  were  recorded  and  in  which  the 
records  of  the  courts  were  kept  from  the  time  of  William 
I  to  that  of  Henry  III.  The  Latin  language  was  sub- 
stituted by  Henry  III,  and  from  that  time  the  Law 
Latin  was  used  until  the  fourth  year  of  George  II,  ex- 
cept during  the  time  of  Cromwell,  that  sturdy  character 
evidently  deeming  good,  terse  English  a  better  medium 
for  expressing  the  law  of  a  great  nation.  It  is  undoubt- 
edly by  reason  of  this  slow  development  and  liberal  ad- 
mixture of  elements  from  such  widely  separated  sources 
that  both  our  language  and  our  system  of  laws  have 
acquired  their  wonderful  degree  of  flexibility  that  is 
shown  in  the  readiness  with  which  they  meet  the  re- 
quirements of  our  constantly  changing  and  developing 
conditions. 

General  Divisions  of  the  Law. — Our  laws  are  divided 
into  two  kinds — the  common  law,  or  lex  non  scripta,  and 
the  statute  law,  or  lex  scripta. 

Common  Law  Described. — The  Latin  names  of  these 
two  general  divisions  of  the  law  are  in  a  measure  his- 
torically descriptive.  The  lex  non  scripta,  or  common 
law,  being  those  general  and  particular  customs  which 


INTRODUCTION.  3 

have  existed  time  out  of  mind,  or,  according  to  the  an- 
cient legal  expression,  "time  whereof  the  memory  of 
man  rimneth  not  to  the  contrary,"  undonbtedly  had 
their  origin  at  a  time  when  writing  was  unknown  in 
western  Europe,  some  of  them  being  said  to  descend 
from  the  Gallic  Druids.  Blackstone,  who  wrote  at  about 
the  middle  of  the  eighteenth  century,  describing  the 
common  law,  said :  "  This  is  that  law  by  which  proceed- 
ings and  determinations  in  the  king's  ordinary  courts  of 
Justice  are  guided  and  directed.  This,  for  the  most  part, 
settles  the  course  in  which  lands  descend  by  inheritance ; 
the  manner  and  form  of  acquiring  and  transferring 
property;  the  solemnities  and  obligations  of  contracts; 
the  rules  of  expounding  wills,  deeds,  and  acts  of  parlia- 
ment; the  respective  remedies  of  civil  injuries;  the  sev- 
eral species  of  temporal  offenses;  and  the  manner  and 
degree  of  punishment;  and  an  infinite  number  of  mi- 
nute particulars  which  diffuse  themselves  as  esitensively 
as  the  ordinary  distribution  of  common  justice  re- 
quires." *  It  was  to  this  branch  of  the  law  that  Lord 
Coke  referred  when  he  said :  "  Eeason  is  the  soul  of  the 
law;  and  when  the  reason  of  any  particular  law  ceases, 
so  does  the  law  itself."  f  Such  a  system  of  law,  it  will 
be  observed,  can  not  be  reduced  to  writing  in  the  form 
of  a  code  without  having  its  entire  nature  changed.    The 

*  Cooley's  Blackstone,  67.  +  Coke  Litt.,  70  b. 


4       THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

universal  application  of  the  principles  and  customs  of 
which  it  consists  would  be  destroyed,  and  the  system 
would  become  crystallized  into  a  set  of  fixed  rules  in- 
capable of  organic  growth  and  development.  There  is, 
however,  some  method  of  recording  necessary  to  secure 
stability  and  certainty  to  this  branch  of  the  law,  and  this 
is  accomplished  by  preserving  the  records  of  the  courts 
of  highest  jurisdiction,  which  show  the  history  of  each 
case  determined  and  illustrate  the  application  of  the 
principles  of  law  governing  it.  These  records  are  kept 
as  precedents  to  guide  the  courts  in  the  future  applica- 
tion of  law  to  similar  facts  coming  before  them  for  adju- 
dication. 

Common  Law  of  the  United  States. — The  common 
law  of  England  was  not  found  to  be  entirely  suited  to 
the  altered  conditions  on  this  side  of  the  Atlantic,  and 
was  therefore  only  adopted  so  far  as  it  was  applicable 
to  our  situation.  The  term  common  law  as  used  in  the 
United  States  may  be  generally  said  to  include  all  of  the 
law  of  England  existing  at  the  time  of  the  settlement  of 
the  colonies  which  was  found  applicable  to  our  condi- 
tions. 

In  contemplating  the  great  age  of  our  common  law 
and  the  identity  of  its  development  with  that  of  our 
parent  nation,  one  can  not  help  regarding  it  with  a  feel- 
ing of  veneration  and  sympathizing  with  the  Mississippi 
lawyer  who,   upon   seeing  the   common-law  rights   of 


INTRODUCTION.  5 

dower  *  and  courtesy  f  wiped  out  by  the  legislature  of 
his  State,  exclaimed :  "  Venerable  relics  of  antiquity, 
you  have  come  down  to  us  from  a  former  generation. 
You  have  survived  the  wreck  of  empires  and  change  of 
dynasties.  Born  way  back  in  the  womb  of  Time,  whereof 
the  memory  of  man  runneth  not  to  the  contrary,  you 
have  outlived  the  War  of  the  Eoses,  passed  safely  through 
the  Protectorate,  crossed  the  ocean,  survived  the  great 
American  Eevolution,  and  rode  out  the  storm  of  the 
late  great  war.  "Whatever  attendants  were  absent  from 
the  bridal  altar,  you  two  at  least  were  always  there; 
and  when  the  bride  and  groom  mutually  murmured, 
*  With  all  my  worldly  goods  I  thee  endow,'  you  as  priest 
and  priestess  sealed  the  covenant.  Like  shades  you've 
followed  the  twain  blended  into  one,  and  whenever 
either  fell  one  of  you  administered  the  balm  of  conso- 
lation to  the  survivor.  If  pure  religion  and  undefiled 
be  to  visit  the  fatherless  and  the  widow  in  their  afflic- 
tion, thy  mission  has  been  akin  to  it.  Venerable  priest 
and  priestess  of  the  common  law,  farewell!  You  have 
been  pleasant  in  your  lives,  and  in  your  death  have  not 
been  divided."  X 

*  Dower  is  the  estate  which  the  wife  takes  upon  the  husband's 
death  in  one  third  of  all  the  real  property  of  which  he  was  seized 
during  the  marriage  relations. 

■f  Courtesy  is  the  life  estate  which  the  husband  takes  upon  the  wife's 
death  in  all  of  her  real  property,  provided  she  had  given  birth  to  a  living 
child.     This  last  condition  is  usually  eliminated  by  American  statutes. 

X  Soliloquy  of  an  old  lawyer,  November,  1880,  from  Annotated  Code 
of  Mississippi,  1892. 


6       THE  LAW  IK  ITS  RELATIONS  TO  PHYSICIANS. 

Statute  Law. — The  statute  law,  or  lex  scripta,  con- 
sists in  England  of  all  of  the  enactments  of  parliament, 
or,  as  an  English  writer  of  the  eighteenth  century,  in  the 
more  courtly  language  of  the  times,  said,  it  consists 
of  those  "  statutes,  acts,  and  edicts  made  by  the  king's 
majesty,  by  and  with  the  advice  and  consent  of  the 
lords  spiritual  and  temporal,  and  commons  in  parlia- 
ment assembled."  In  the  United  States  the  statute  law 
includes  all  positive  enactments  of  the  various  legisla- 
tive bodies. 

Whenever  a  question  arises  as  to  the  application  of  a 
statute  to  a  given  condition  not  coming  clearly  within 
the  purport  of  its  meaning,  the  aid  of  the  common  law 
is  invoked  by  the  courts  in  interpreting  and  construing 
the  act;  it  therefore  will  be  seen  that  the  common  law 
forms  the  fundamental  groundwork  of  our  entire 
system. 

Reason  the  Foundation  of  Law. — Eeason  being  the 
soul  of  our  law,  as  very  aptly  stated  by  Lord  Coke,  it 
necessarily  follows  that  a  clear  comprehension  of  the  law 
is  based  upon  a  knowledge  of  the  reason  underlying  the 
law,  and  that  one  can  not  really  know  the  law  without 
first  Icnowing  the  reason  therefor. 

In  writing  the  following  pages  the  author  has  en- 
deavored to  keep  this  fundamental  truth  in  mind,  and 
has,  whenever  possible,  first  developed  the  general  prin- 
ciple, giving  the  reason  supporting  the  same,  and  then 


INTRODUCTION. 


illustrated  its  application  by  particular  cases.  When- 
ever that  course  seemed  impracticable,  he  has  endeav- 
ored to  show  the  principle  governing  in  the  particular 
case  and  the  reason  for  its  application. 


CHAPTEE   I. 

THE   RIGHT   TO    PRACTISE   MEDICINE   AND   SURGERY. 

No  Restrictions  except  by  Statute. — The  common 
law  *  of  England  did  not  recognize  the  inability  of  the 
public  to  discriminate  for  themselves  between  the  quali- 
fied and  the  unqualified  practitioners  of  medicine  and 
surgery,  and  therefore  imposed  no  restrictions  upon  the 
free  exercise  of  the  art  of  healing ;  the  necessity  of  such  a 
restriction  was,  however,  recognized  at  an  early  date, 
and  in  the  third  year  of  the  reign  of  Henry  VIII  a 
law  was  enacted  prohibiting  any  person  from  practising 
medicine  or  surgery  in  London,  or  within  seven  miles 
thereof,  without  first  being  examined,  approved,  and 
admitted  by  the  Bishop  of  London  or  the  Dean  of  Paul's, 
who  should  call  to  their  aid  four  doctors  of  physic  and, 
for  surgery,  other  expert  persons  in  that  faculty.  The 
statute  further  provided  that  no  person  should  prac- 
tise outside  of  London  and  a  seven-mile  radius  thereof 
without  being  first  examined  and  approved  by  the  bishop 
of  his  diocese,  or  his  vicar-general,  similarly  assisted, 

*  For  the   distinction  between  common  law   and  statute  law,   see 
Introduction,  p.  2. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  9 

saving  those  practising  under  privileges  conferred  by 
the  Universities  of  Cambridge  or  Oxford.  Seven  years 
later  a  charter  was  granted  to  the  College  of  Physicians 
in  London  vesting  in  it  the  right  of  examining  and 
admitting  to  practice  formerly  granted  to  the  Bishop 
of  London  and  Dean  of  Paul's. 

Other  laws  relating  to  the  subject  were  enacted  from 
time  to  time,  but,  owing  to  their  character,  they  were 
not  applicable  to  the  condition  existing  in  the  United 
States,  and  consequently  never  became  law  here. 

Statutory  Restrictions  in  the  United  States. — In  the 
United  States  the  legislature  of  each  State  has  authority 
to  prescribe  qualifications  which  must  be  possessed  by 
those  practising  medicine  and  surgery  within  its  borders, 
and  it  may  be  said  without  exception  that  the  legis- 
lature of  each  State  has  exercised  this  right  to  a  greater 
or  less  degree.  An  elaborate  treatment  at  this  point 
of  the  statutes  of  the  several  States  would  be  incon- 
sistent with  the  size  and  scope  of  this  work,  yet  a  brief 
resume  will,  it  is  thought,  be  of  sufficient  value  to  the 
practitioner  to  justify  devoting  to  that  purpose  the  neces- 
sary space. 

General  Classification  of  Requirements. — The  quali- 
fications prescribed  by  the  several  States  to  entitle  one 
to  begin  the  practice  of  medicine  and  surgery  vdthin 
their  respective  jurisdictions  may  be  generally  classed 
under  the  four  heads  following: : 


10     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS.       ' 

I.  The  candidate  must  have  a  diploma  from  a  medi- 
cal college  in  good  standing,  the  length  of  the  course 
being  specified  in  many  States,  and  ordinarily  being 
three  or  four  years.  In  addition,  he  must  pass  a  satis- 
factory examination  before  a  board  of  examiners,  the 
subjects  to  be  covered  by  this  examination  being  fre- 
quently specified. 

This  is  the  rule  in  Arizona,  Connecticut,  Delaware, 
District  of  Columbia,  Florida,  Georgia,  Idaho,  Illinois,* 
Iowa,  Louisiana,  Maryland,  Minnesota,  Montana,  New 
Hampshire,  'New  Jersey,  ISIew  York,  North  Carolina,! 
Pennsylvania,  South  Carolina,  and  Utah. 

II.  The  candidate  must  pass  a  satisfactory  examina- 
tion as  in  the  first  class,  but  he  is  not  required  to 
have  a  diploma  from  a  medical  college.  In  some  States 
of  this  class  the  time  he  shall  have  spent  in  the  study 
of  medicine  is  designated. 

The  follomng  are  the  States  within  this  class: 
Alabama,  Arkansas,  Maine,  Massachusetts,  Mississippi, 
North  Dakota,  Oregon,  Tennessee,  Texas,  Virginia, 
Washington,  and  West  Virginia. 


*  In  Illinois  graduates  of  legally  chartered  medical  colleges  of  the 
State,  in  good  standing,  as  may  be  determined  by  the  State  Board  of 
Health,  may  be  granted  certificates  without  examination.     Laws  1899. 

\  In  North  Carolina,  a  license  or  other  satisfactory  evidence  of 
standing  as  a  legally  qualified  practitioner  of  another  State  shall  be 
accepted  in  lieu  of  a  diploma  as  entitling  the  applicant  to  be  examined. 
Laws  1809. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  H 

III.  The  candidate  may  either  present  an  acceptable 
diploma  or,  if  he  has  no  diploma,  he  may  be  examined 
as  to  his  qualifications  to  practise  medicine  and  surgery. 

This  is  the  method  of  admitting  candidates  in  Colo- 
rado, Missouri,  New  Mexico,  Ehode  Island,  Vermont, 
and  Wisconsin. 

IV.  The  applicant  must  hold  a  diploma  issued  by 
a  proper  medical  college,  which  must  be  satisfactorily 
shown  to  belong  to  him. 

This  qualification  is  prescribed  in  California,  In- 
diana,* Kansas,  Kentucky,  Michigan,  Nebraska,  Nevada, 
Ohio,  Oklahoma  Territory,!  South  Dakota,  and  Wyo- 
ming. 

Indian  Territory  has  a  peculiar  arrangement  which 
in  effect  allows  the  Indians  to  follow  their  own  customs 
in  regard  to  doctors  or  medicine  men  of  their  own  race, 
but  in  the  Cherokee  and  Choctaw  Nations  provides 
for  the  examination  of  those  not  citizens  of  the  nation 
who  desire  to  settle  therein  to  practise  medicine.  The 
law  also  requires  the  candidate  to  secure  the  indorse- 
ment of  four  or  more  citizens  of  the  nation  residing 

*  In  Indiana,  if  the  college  issuing  the  diploma  presented  is  not  rcc 
ognized  as  maintaining  a  sufficiently  high  standard  of  medical  education, 
the  applicant  shall  have  the  privilege  of  being  examined  as  to  his  quali- 
fications to  practise  medicine  and  surgery. 

f  In  Oklahoma  Territory,  the  candidate  may  be  admitted  upon  ex- 
amination if  he  has  been  actually  engaged  in  the  practice  of  medicine 
not  less  than  five  years. 
3 


12     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

in  the  vicinity  in  which  he  desires  to  practise  medi- 
cine. 

There  is  no  law  protecting  the  residents  of  the  Creek 
Nation  from  incompetent  practitioners. 

Additional  Requirements. — In  addition  to  the  re- 
quirements classified  under  these  four  heads  there  are 
certain  other  requirements  which  are  almost  universally 
imposed — viz.,  that  the  candidate  shall  be  twenty-one 
years  of  age,  of  good  moral  character,  and  have  a  good 
general  education.  In  some  States  it  is  provided  that  he 
shall  never  have  been  convicted  of  a  felony.* 

Removal  to  Another  State. — There  seems  to  be  very 
little  disposition  manifested  in  the  statute  laws  of  the 
various  States  to  facilitate  the  moving  of  a  regularly 
licensed  physician  from  one  State  to  another.  Several 
of  the  States  make  special  arrangements  for  licensing 
regularly  qualified  physicians  of  sister  States  who  change 
their  residence  and  practice  to  those  States,  but  in  each 
case  satisfactory  evidence  is  required  of  the  same  or  a 
similar  degree  of  proficiency  as  that  established  to  entitle 
other  candidates  to  practise  within  the  particular  State. 

Proving  Diploma. — Whenever  a  candidate  is  ad- 
mitted to  practise  medicine  and  surgery  by  virtue  of  a 
diploma,  it  is  usually  necessary  for  him  to  submit  the 
diploma  to  some  board  appointed  for  the  purpose  of 

*  A  felony  may  be  generally  defined  as  an  offense  that  is  punishable 
by  capital  punishment  or  by  being  imprisoned  in  the  State  prison. 


THE  RIGHT  TO   PRACTISE  MEDICINE.  13 

passing  upon  the  qualifications  of  candidates,  together 
with  an  affidavit  that  he  is  the  lawful  possessor  of  such 
diploma,  that  he  has  attended  the  full  course  of  study- 
required  for  the  degree,  and  that  he  is  the  person  named 
in  the  diploma. 

Issuing  and  Filing  Certificate  or  License. — If  upon 
examination  of  the  papers  submitted  the  board  finds 
that  the  candidate  has  fulfilled  the  requirements  of  the 
law,  they  issue  a  certificate  showing  him  to  be  entitled  to 
practise  medicine  and  surgery  within  that  particular 
county  or  State.  If  the  candidate  is  admitted  upon  ex- 
amination, a  like  certificate  is  issued.  In  either  case  the 
law  usually  provides  that  this  certificate  shall  be  filed 
with  some  county  officer  in  the  county  in  which  the  physi- 
cian resides  and  practises.  The  filing  of  this  certificate 
with  the  county  officer  designated  is  an  essential  part  of 
the  requirements,  and  a  physician  is  not  entitled  to  prac- 
tise and  receive  the  benefits  thereof  until  his  certificate  is 
so  filed.  The  law  generally  provides  that  in  case  a  physi- 
cian removes  to  some  county  other  than  that  in  which  he 
first  filed  his  certificate  he  shall  file  a  properly  authenti- 
cated copy  of  the  certificate  in  the  county  to  which  he 
removes;  this  copy  will  ordinarily  be  furnished  by  the 
officer  with  whom  the  certificate  is  originally  filed  upon 
the  payment  of  a  small  fee.* 

*  As  to  the  physician's  right  to  attend  patients  in  other  counties 
without  first  filing  his  certificate  in  such  other  counties,  see  p.  32. 


14     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Enforcement  of  the  Law. — In  a  very  few  States  no 
penalty  is  prescribed  for  a  violation  of  the  law,  but  in 
nearly  all  States  the  law  is  enforced  by  fines,  usually 
with  an  alternative  penalty  of  imprisonment,  and  some- 
times by  fine  and  imprisonment  conjunctively.  The 
amount  of  the  fine  and  the  duration  of  the  imprison- 
ment is  largely  discretionary  with  the  court,  certain  lim- 
its being  prescribed  for  his  direction,  fixing  the  mini- 
mum and  maximum  amount  of  fine  to  be  imposed  and 
designating  the  longest  and  shortest- periods  of  impris- 
onment to  which  the  offender  shall  be  committed.*  The 
smallest  amount  of  fine  fixed  by  any  State  is  ten  dollars, 
and  the  largest  amount  allowed  to  be  imposed  in  any  is 
five  hundred  dollars;  the  extreme  periods  of  imprison- 
ment vary  from  ten  days  to  one  year.  In  a  few  States, 
however,  the  payment  of  the  fine  is  enforced  by  impris- 
onment until  paid. 

Recovery  of  Fee  prohibited  by  Statute. — The  stat- 
utes of  several  States  expressly  provide  that  any  physi- 
cian practising  medicine  unlawfully  shall  not  be  per- 
mitted to  recover  any  fee  or  compensation  for  his  serv- 
ices.!    The  right  of  the  physician  to  recover  for  such 

*  In  North  Carolina  the  discretion  of  the  court  as  to  the  period  of 
time  for  which  the  offender  shall  be  committed  is  unlimited. 

f  Such  provision  exists  in  Alabama,  Georgia,  Kansas,  Kentucky^ 
Louisiana,  Maryland,  Michigan,  Nebraska,  North  Carolina,  Rhode 
Island,  Virginia,  and  Vermont. 


THE  RIGHT  TO   PRACTISE  MEDICINE.  15 

services  in  States  where  there  is  no  express  prohibition 
of  recovery  has  been  the  subject  of  judicial  determina- 
tion, and  is  fully  treated  in  Chapter  VI  of  this  work. 

Privileges  to  Non-resident  Physicians. — While  every 
physician  is,  or  at  least  ought  to  be,  familiar  with  the 
statutes  regulating  the  practice  of  medicine  and  surgery 
in  his  own  State,  it  is  also  greatly  to  his  interest  to  be 
informed  upon  the  laws  of  the  neighboring  States,  at 
least  so  far  as  they  extend  privileges  to  him  as  a  legally 
qualijfied  practitioner  of  a  sister  State. 

Privilege  of  Attending  Cases. — The  States  of  Con- 
necticut, District  of  Columbia,  Indiana,  Kentucky, 
Maine,  Massachusetts,  Mississippi,  New  Hampshire, 
New  Jersey,  New  York,  North  Carolina,*  Ohio,  Penn- 
sylvania, Ehode  Island,  and  Wyoming  accord  to  non- 
resident physicians  and  surgeons  the  privilege  of  prac- 
tising within  their  border,  but  they  are  not  permitted 
in  any  case  to  maintain  an  office  or  have  a  place  for 
meeting  patients  generally  within  such  States.  In  sev- 
eral of  these  States  f  the  non-resident  physicians'  visits 
are  restricted  to  "  a  particular  case."    The  exact  mean- 

*  In  North  Carolina  the  privilege  is  expressly  limited  so  as  not  to 
permit  physicians  resident  in  a  neighboring  State  to  "  regularly  prac- 
tise "  in  that  State. 

•|-  In  Kentucky,  Maine,  Massachusetts,  and  Rhode  Island,  the  visit  is 
restricted  to  a  "  particular  case  "  ;  in  Kentucky,  to  a  "  particular  case  or 
family  "  ;  in  the  District  of  Columbia,  such  physicians  are  permitted  to 
attend  "  specified  cases." 


16    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ing  of  this  restriction  does  not  seem  to  have  been  judi- 
cially determined. 

Before  exercising  the  privilege  in  Mississippi  the 
practitioner  must  procure  a  license  from  the  State  board 
of  health,  which  license  is  granted  to  him  without  ex- 
amination, and  as  a  matter  of  right,  upon  his  showing 
himself  to  be  a  legally  qualified  practitioner  of  another 
State.  The  privilege  given  by  Indiana,  'New  Hamp- 
shire, New  York,  Ohio,  Pennsylvania,  and  Wyoming  is 
restricted  to  physicians  living  "  on  the  border  of  a 
neighboring  State. ^'  The  law  of  New  Hampshire,  how- 
ever, permits  non-resident  physicians,  irrespective  of 
their  place  of  residence,  to  attend  their  regular  patients 
while  sojourning  in  the  State;  it  also  allows  landlords 
of  summer  hotels  to  employ  physicians  unlicensed  in  the 
State  as  hotel  physicians  to  care  for  their  guests  or 
employees.  New  Jersey  allows  a  physician  of  another 
State  to  take  temporary  charge  of  the  practice  of  a 
physician  of  that  State,  a  written  request  being  first 
made  to  the  State  board  of  medical  examiners. 

Privilege  of  Consultation. — It  is  expressly  provided 
that  legally  qualified  physicians  and  surgeons  from  other 
States  may  meet  in  consultation  with  resident  physicians 
in  twenty-four  States,  to  wit:  Connecticut,  Delaware, 
District  of  Columbia,  Georgia,  Idaho,  Indiana,  Louisi- 
ana, Maryland,  Minnesota,  Montana,  Nebraska,  New 
Hampshire,  New  Jersey,  New  York,  North  Carolina, 


THE  RIGHT  TO   PRACTISE   MEDICINE.  17 

North  Dakota,  Ohio,  Pennsylvania,  South  Carolina, 
Tennessee,  Utah,  Virginia,  West  Virginia,  Wisconsin, 
and  Wyoming.  The  law  of  Georgia  restricts  such  con- 
sultation to  "  a  special  case,"  and  expressly  provides 
that  a  non-resident  physician  shall  not  be  permitted  to 
engage  in  a  continuous  practice  or  consultation,  in  con- 
nection with  a  resident  physician  or  surgeon. 

It  will  be  observed  that  not  all  of  the  States  which 
allow  non-residents  to  attend  patients  within  their  bor- 
ders expressly  give  them  the  right  to  meet  resident  phy- 
sicians in  consultation :  but  applying  the  general  maxim 
of  law.  Major  continet  in  se  minorem,  it  may  be  stated 
generally  that  any  non-resident  physician  having  the 
right  to  enter  a  State  to  practise  medicine  has  also  the 
right  to  meet  a  resident  physician  there  in  consultation. 

Judicial  Construction  of  Statutes. — The  statutory 
enactments  of  the  various  States  have  from  time  to  time 
been  construed  by  the  courts  of  the  respective  States  or 
of  the  United  States ;  but  these  decisions,  being  usually 
based  upon  the  particular  wording  or  meaning  of  the 
statute  in  question,  are  ordinarily  of  little  interest  out- 
side of  the  State  in  which  they  are  rendered.  Some  of 
these  decisions,  however,  either  involve  a  principle  of 
extended  application  or  construe  statutes  which  exist  so 
generally  as  to  render  them  of  sufficient  value  to  justify 
an  examination. 

Constitutional  Validity  of  Medical  Acts. — The  con- 


18     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

stitutional  validity  of  the  laws  prescribing  requirements 
for  those  practising  medicine  and  surgery  has  been  at- 
tacked in  nearly  every  State  in  the  Union  upon  the  gen- 
eral grounds  that : 

They  invade  natural  rights. 

They  interfere  with  vested  rights. 

They  discriminate  against  persons  engaged  in  the 
same  business  or  profession,  and  deny  them  the  equal 
protection  of  the  law. 

Or,  they  are  ex  post  facto. 

Our  courts,  both  State  and  Federal,  have,  however, 
almost  universally  upheld  the  constitutionality  of  these 
acts,  conceding  them  to  be  invalid  only  where  they  con- 
tained some  specially  objectionable  feature. 

The  authority  of  the  legislature  to  enact  a  law  of  the 
character  of  those  under  consideration  is  included  in  the 
police  power  of  the  State.  The  police  power  is  very 
broad ;  it  has  been  judicially  defined  to  be  that  inherent 
and  plenary  power  in  the  State  which  enables  it  to  pro- 
hibit all  things  hurtful  to  the  comfort  and  welfare  of 
society.  It  extends  to  the  protection  of  the  lives,  limbs, 
health,  comfort,  and  convenience  as  well  as  the  property 
of  all  persons  within  the  State,  and  to  accomplish  this 
end  persons  and  property  are  subjected  to  all  kinds  of 
restraints  and  burdens.* 

*  Lakevicw  vs.  Rose  Hill  Cemetery,  10  III,  191,     State  vs.  Noyes,  4*7 
Mc,  189. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  19 

That  the  practice  of  medicine  and  surgery  is  a  voca- 
tion that  very  nearly  concerns  the  comfort,  health,  and 
even  life  of  nearly  every  person  can  not  be  questioned, 
and  therefore  a  wholesome  restraint  upon  those  unpre- 
pared to  exercise  these  important  functions  is  clearly 
the  right  of  the  State  and  its  duty  as  well. 

Nearly  every  State  makes  special  provisions  for 
licensing  those  who  had  been  engaged  in  the  practice  of 
medicine  and  surgery  in  that  State  for  a  certain  length 
of  time  prior  to  the  enactment  of  the  law.  The  validity 
of  such  provisions  is  attacked  on  the  ground  that  they 
create  special  privileges  and  allow  those  who  have  exer- 
cised the  right  for  the  prescribed  time  to  continue  its 
exercise  without  submitting  to  examination  or  present- 
ing a  diploma ;  while  all  who  have  not  practised  for  such 
period  are  obliged  to  be  specially  examined  as  to  their 
qualifications  or  present  diplomas,  or  both.  The  answer 
to  this  attack  is,  that  if  in  the  wisdom  of  the  legislature 
the  experience  gained  in  practising  five  or  ten  years,  or 
any  other  period  fixed  upon,  within  the  State  is  equiva- 
lent by  way  of  preparation  to  the  course  prescribed  for 
those  about  to  undertake  the  practice  of  medicine  and 
surgery,  it  shall  be  lawful  and  will  be  considered  no 
discrimination  to  fix  these  two  standards. 

It  has  been  observed  heretofore  that  many  States  ex- 
tend to  non-resident  physicians  and  surgeons  the  right 
of  being  called  into  the  State  in  consultation,  and  some- 


20     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

times  the  right  to  extend  their  practice  into  the  State 
without  being  examined  or  licensed.  This  has  also  been 
attacked  as  being  an  unjust  discrimination  and  contrary 
to  the  fourteenth  amendment  of  the  Federal  Constitu- 
tion. It  will  be  found  that  such  laws  do  not  permit  such 
non-resident  physicians  to  have  an  office  or  place  for 
meeting  patients  within  the  State,  and  that  they  usually 
impose  further  restrictions.  It  therefore  can  not  be  said 
that  such  non-resident  physicians  enjoy  the  same  privi- 
leges and  immunities  as  a  duly  licensed  resident  practi- 
tioner, and  the  law  is  therefore  not  subject  to  the  objec- 
tion urged.  An  Ohio  court  has  upheld  the  constitution- 
ality of  the  act,  but  based  its  reason  for  so  doing  on  other 
grounds.  In  considering  the  question,  the  court  said: 
"We  discover  nothing  unreasonable  in  the  regulations 
adopted  by  the  statute  in  question  for  the  admission  of 
persons  to  the  practice  of  medicine,  nor  any  valid  objec- 
tion to  the  provision  excepting  therefrom  physicians 
residents  of  other  States.  Physicians  called  in  consulta- 
tion are  usually  the  most  eminent  and  skillful  that  can 
be  procured;  and  those  residing  on  the  border  of  an 
adjoining  State,  with  a  practice  extending  into  this  State, 
can  include  only  those  who  have  a  legal  standing  and  es- 
tablished practice  in  their  own  State,  and  which  the  law 
regards  a  sufficient  evidence  of  their  capacity  and  char- 
acter to  admit  them  to  continue  their  practice  here."  * 
*  France  vs.  State,  o1  0.  St.,  1 ;  47  N.  E.  Rep  ,  1041. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  21 

Constitutional  Objections  to  Particular  Acts. — Cer- 
tain features  of  those  acts  have  at  times  been  found  to 
be  objectionable;  as,  for  instance,  a  law  which  allowed 
certain  privileges  to  a  particular  school  of  medicine,  or 
which  imposed  certain  burdens  upon  another  school, 
would  be  unconstitutional.*  A  law  punishing  a  duly 
qualified  physician  for  what  is  styled  "  unprofessional 
conduct "  in  advertising  himself  as  a  specialist  in  cer- 
tain diseases  would  be  unconstitutional;  for,  while  such 
conduct  might  be  contrary  to  professional  ethics,  it  would 
in  no  way  be  injurious  to  the  public  morals  or  a  menace 
to  the  general  welfare,  f  And  so  a  law  requiring  all  who 
had  not  practised  four  years  in  one  place  to  procure  and 
pay  for  a  license,  but  exempted  those  who  had  practised 
for  this  period  from  such  expense,  would  be  unconstitu- 
tional because  of  the  burden  imposed  upon  one  class  and 
not  upon  all.  J 

But  against  the  main  body  of  the  statute  law  upon 
the  subject,  as  it  stands  in  the  several  States,  there  seems 
to  be  no  valid  constitutional  objection  which  can  be 
urged. 

Doctor,  Physician,  and  Surgeon  Defined. — The  mean- 
ing of  the  term  doctor,  or  physician  and  surgeon,  as  used 
in  the  law,  is  not  confined  to  any  particular  school  or 

*  Gee  Woo  vs.  State,  86  Neb.,  241  ;  54  N.  W.  Rep.,  513. 

+  Ex  parte  McNultv,  17  Cal.,  164. 

X  State  vs.  Tennoyer,  65  N.  H.,  113 ;  18  Atl.  Rep,,  878. 


22     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

schools,  but  is  considered  in  the  broad  sense  of  one  who 
professes  the  art  of  healing.  Justice  Daly,  in  a  well-con- 
sidered case,  said :  "  The  legal  signification  of  the  term 
doctor  is  simply  a  practitioner  of  physic.  The  system 
pursued  by  the  practitioner  is  immaterial.  The  law  has 
nothing  to  do  with  the  merits  of  particular  systems. 
Their  relative  merits  must  become  the  subject  of  inquiry 
when  the  skill  or  ability  of  a  practitioner  in  any  given 
case  is  to  be  passed  u]3on  as  a  matter  of  fact."  * 

The  supreme  court  of  Wisconsin,  thirty  years  later, 
following  the  reasoning  of  this  decision,  held  that  a  stat- 
ute providing  for  the  organization  of  a  county  medical 
society  included  as  well  the  organization  of  homoeopa- 
thists  as  of  any  other  school,  f 

The  question  of  whether  one  who  "  practises  bone- 
setting  and  reducing  sprains,  swellings,  and  contractions 
of  the  sinews,  by  friction  and  fomentation,"  is  a  practi- 
tioner of  medicine  and  surgery,  was  considered  in  the 
supreme  court  of  Massachusetts  in  183 5. J  The  court 
was  of  the  opinion  that  while  such  a  practice  does  not 
amount  to  a  general  exercise  of  the  functions  of  the 
science  of  either  medicine  or  surgery,  it  forms  an  impor- 
tant part  of  the  practice  of  surgery,  and  renders  the 
practitioner  amenable  to  the  laws  affecting  the  physi- 

*  Corsi  vs.  Maretzek,  4  E  D.  Smith,  1. 
f  Raynor  vs.  State,  62  Wis.,  289. 
J  Hewitt  vs.  Charier,  16  Pick,  353. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  23 

cian  and  surgeon;  also  one  who  gave  electric  treatment 
was  held  to  be  engaged  in  the  practice  of  medicine  and 
surgery.  The  court  said :  "  It  is  quite  unnecessary,  we 
think,  that,  in  order  to  practise  medicine  within  the 
meaning  of  the  statute,  the  practitioner  should  give 
internal  remedies."  *  The  services  of  a  clairvoyant  are 
within  the  meaning  of  the  term  "  medical  or  surgical 
services."'  f 

The  law  of  Illinois,  in  force  in  1887,  provided  that 
"  no  person  shall  practise  medicine  in  any  of  its  depart- 
ments in  this  State  without  the  qualifications  required 
by  this  act."  The  question  arose  whether  or  not  this  in- 
cluded midwifery.  The  court  was  of  the  opinion  that 
obstetrics  was  an  important  department  of  medicine, 
and  that  it  was  'included  within  the  terms  of  the  stat- 
ute. J 

Moreover,  the  supreme  court  of  Nebraska,  in  a  well- 
considered  opinion  rendered  in  1894,  held  that  a  Chris- 
tian Scientist,  in  the  exercise  of  his  practice,  came  within 
the  statute  which  provides  that  any  person  shall  be  con- 
sidered as  practising  medicine  "  who  shall  operate  on, 
profess  to  heal,  or  prescribe  for,  or  otherwise  treat  any 
physical  or  mental  ailment  of  another."  * 

*  Davidson  vs.  Bohlraan,  87  Mo.  App.,  5*76. 

■f  Bibber  vs.  Simpson,  59  Me.,  181. 

X  People  vs.  Arendt,  60  111.  App.,  89. 

«  State  vs.  Buswell,  40  Neb.,  158 ;  58  N.  W.  Rep.,  728. 


24     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

In  a  more  recent  case^,  however,  arising  in  Rhode 
Island,  the  court  held  that  the  term  "  practice  of  medi- 
cine," as  used  in  their  statutes,  must  be  understood  in 
the  ordinary  or  popular  sense  of  determining  the  physi- 
cal condition  of  the  patient  and  treating  his  disease  or 
injury  by  the  ordinary  or  material  remedies,  and  that  it 
could  not  be  so  construed  as  to  include  in  its  meaning 
the  treatment  of  the  Christian  Scientist,  which  takes 
account  neither  of  physical  symptoms  and  conditions 
of  the  patient  nor  of  the  application  of  remedial  sub- 
stances.* 

While  several  of  these  decisions  were  based  upon 
the  wording  of  particular  statutes,  it  may  be  laid  down 
as  a  general  rule  that  the  term  doctor,  physician,  and 
surgeon,  or  practitioner  of  medicine  and  surgery,  as  le- 
gally used,  is  broad  enough  to  include  all  those  who 
profess  and  practise  the  art  of  healing  in  its  several 
branches.! 

Decision  of  Examining  Board,  when  Conclusive. — 
The  authority  conferred  upon  the  examining  board  is 
usually  both  ministerial  and  judicial  in  its  character; 
by  the  law  of  most  States  the  decisions  of  the  board  in 
refusing  or  in  revoking  licenses  to  practise  are  made  sub- 
ject to  review  on  appeal  to  the  circuit  or  district  court. 
The  law  usually  provides  the  manner  of  taking  this  ap- 

*  State  vs.  Mylod  (R.  I.),  40  Atl.  Rep.,  Y53. 
f  See  joos^,  p.  39,  et  seq. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  25 

peal^  but  is  sometimes  silent  upon  the  subject;  this  fail- 
ure, however,  to  provide  for  the  manner  of  appealing  does 
not  affect  the  right  to  appeal.  Whenever  the  law  pro- 
vides that  the  proceedings  of  the  board  may  be  reviewed 
upon  appeal,  it  will  be  necessary  for  the  party  who  is 
not  satisfied  with  their  decision  to  bring  the  matter  be- 
fore the  court  in  the  manner  provided  by  the  statute ;  * 
but  when  the  statute  makes  no  provision  whatever  for 
an  appeal  from  the  decision  of  the  board,  his  remedy  is  by 
mandamus.  A  writ  of  mandamus  is  a  command  issu- 
ing from  a  court  of  law  in  the  name  of  the  State  directed 
to  some  inferior  court,  officer,  or  person,  requiring  him  or 
them  to  do  some  particular  thing  therein  specified.  In 
theory,  a  writ  of  mandamus  will  issue  only  to  compel  the 
performance  of  a  ministerial  act,  but  will  not  review  any 
judicial  proceeding  or  interfere  with  the  performance  of 
a  function  requiring  the  exercise  of  judgment  and  dis- 
cretion. Should,  however,  a  board  refuse  to  give  a  can- 
didate a  fair  examination  because  of  his  views  regarding 
any  particular  school  of  medicine,  or  should,  when  exam- 
ined, refuse  to  pass  him  for  a  like  reason,  or  refuse  to 
accept  his  diploma  for  a  similar  reason,  then  mandamus 
would  lie;  but  if,  after  giving  him  a  fair  examination, 
they  determine  that  his  knowledge  of  medicine  is  not 
sufficient  to  entitle  him  to  practise,  or  if,  after  hearing 

*  State,  Norcross  vs.  Board  of  Medical  Examiners,  25  Pac.  Rep.,  440 ; 
10  Mont.,  162. 


26     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

evidence  against  a  legally  qualified  practitioner  in  tlie 
manner  provided  by  law,  they  decide  he  has  been  guilty 
of  an  offense  justifying  the  revocation  of  his  certificate 
or  license,  such  decisions  are  not  subject  to  review  under 
a  writ  of  mandamus.  In  New  Jersey  the  board  has  re- 
fused to  register  the  applicant  on  the  ground  that  his 
diploma  was  not  issued  by  a  reputable  school  or  college 
of  medicine  and  surgery.  Under  a  writ  of  mandamus 
the  court  refused  to  consider  the  evidence  as  to  whether 
the  judgment  of  the  board  was  correct,  because  the  board 
had  acted  in  a  judicial  capacity  in  arriving  at  this  con- 
clusion.* 

In  Missouri  the  supreme  court,  in  considering  prac- 
tically the  same  facts,  rendered  the  same  decision;  the 
judge,  however,  in  delivering  the  opinion,  said :  "  It  is 
thought  best  to  say  this  in  conclusion,  that,  notwithstand- 
ing what  has  been  said  relative  to  the  discretionary  pow- 
ers of  the  board  of  health,  that  [sic]  according  to  the 
express  terms  of  the  provision  in  section  2,  such  discre- 
tionary power  does  not  extend  to  discriminating  against 
any  particular  school  or  system  of  medicine,  and  that, 
should  such  discrimination  ever  occur,  the  limits  of  dis- 
cretionary power  will  have  been  passed."  f 

Summing  up,  it  may  be  stated  generally  that  the 

*  State  ex  rel.  Kirchgessner  vs.  Board  of  Health,  etc.,  22  Atl.  Rep., 
226. 

f  State  ex  rel.  Granville  vs.  Gregory,  83  Mo.,  123. 


THE   RIGHT   TO   PRACTISE   MEDICIJ^E.  27 

action  of  the  examining  board  is  not  final.  If  the  stat- 
ute gives  the  right  of  appeal,  the  court  having  jurisdic- 
tion will  review  the  proceedings  of  the  board,  and  by  its 
judgment  rectify  errors,  should  any  be  found.  And  the 
right  to  review  the  grounds  of  refusal  on  appeal  is  not 
confined  to  cases  of  refusal  for  unprofessional  and  dis- 
honorable conduct,  but,  where  the  statute  provides  for 
appeal  in  "  all  cases  of  the  refusal  of  a  certificate,"  the 
court  may  examine,  or  direct  the  examination,  of  a  can- 
didate as  to  his  competency.*  Where  no  right  of  appeal 
is  given  by  statute,  a  writ  of  mandamus  will  lie  to  compel 
the  board  to  do  those  things  which  the  law  makes  it  their 
duty  to  do,  and  even  to  rectify  a  manifest  injustice  re- 
sulting from  an  abuse  of  their  discretionary  powers,  f 

Illustrations. — It  will  be  observed  from  the  forego- 
ing that  it  is  the  purpose  of  the  law  to  guard  against 
arbitrary  and  unjust  or  unfair  conduct  on  the  part  of  the 
examining  board.  A  case  arose  in  New  Hampshire  some 
years  ago  very  aptly  illustrating  this.  A  candidate 
applied  to  the  board  for  a  license  to  practise  medicine, 
surgery,  and  midwifery;  he  produced  a  diploma  which 
fulfilled  the  requirements  of  the  law,  but  the  board 
refused  to  grant  the  license  on  the  ground  that  he  was 

*  State  vs.  District  Court  of  First  Judicial  District,  48  Pac.  R.,  1104 
(Mont.l. 

\  Illinois  State  Board  of  Deutal  Examiners  vs.  People,  123  HI.,  227! 
13  N.  E.  Rep.,  201. 


28     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

not  worthy  of  public  confidence.  The  board  has  the 
power  nnder  the  law  of  New  Hampshire,  "  upon  due 
notice  and  hearing,  to  revoke  any  license  granted  by  it, 
when  improperly  obtained,  or  when  the  holder  has,  by 
conviction  of  crime  or  for  other  cause,  ceased  to  be 
worthy  of  public  confidence."  The  court  held  that  the 
board  had  no  right  to  refuse  the  applicant  a  license 
solely  upon  the  ground  that  he  was  "  not  worthy  of 
public  confidence,"  without  first  giving  him  due  notice 
and  a  fair  hearing.  If  then  facts  were  fairly  proved  by 
evidence  adduced  showing  him  to  be  unworthy  of  public 
confidence,  the  license  would  be  properly  refused.* 

And  so,  when  the  board  established  a  rule  that  every 
medical  college  should  by  a  certain  date  furnish  the 
board  with  a  list  of  its  matriculates  and  the  basis  of  their 
matriculation,  and  in  the  event  that  any  college  failed 
to  comply  with  this  request  it  should  not  be  considered 
"  in  good  standing,"  the  court  held  that  this  rule  could 
not  be  enforced  against  an  applicant  who  had  grad- 
uated from  a  college  in  good  standing  which  had  not 
complied  with  the  rule,  if  it  was  shown  that  the  college 
had  no  notice  of  the  rule  until  after  the  date  fixed,  f 

A  Medical  College  can  not  Arbitrarily  Refuse  Exam- 
ination.— While  the  following  illustration  is  not  strictly 
pertinent  to  the  subject  in  consideration,  it  shows  how 

*  Gage  vs.  Censors,  63  N.  H.,  92. 

f  State  ex  rd.  Johnson  vs.  Lutz,  136  Mo.,  633;  38  S.  W.  Rep.,  323. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  29 

the  courts  apply  the  policy  above  illustrated  to  protect 
students  from  the  arbitrary  action  of  medical  colleges  as 
well  as  applicants  from  the  unjust  discrimination  of 
examining  boards.  A  medical  student  who  had  paid  his 
fees  and  fulfilled  all  of  the  other  conditions  entitling 
him  to  present  himself  for  final  examination,  was  in- 
formed by  the  secretary  of  the  faculty  that  he  would  not 
be  allowed  to  present  himself  for  final  examination,  nor 
would  he  be  granted  a  degree  of  doctor  of  medicine. 
Upon  a  writ  of  mandamus  the  matter  was  brought  be- 
fore the  court  and  an  order  issued  requiring  the  exami- 
nation of  the  student.  The  opinion  of  the  court  is  both 
interesting  and  instructive,  and  is  therefore  quoted  from 
at  length.  "  In  answer  to  this  application  the  respond- 
ent (the  medical  college)  presents  no  ground  whatever 
for  its  action,  but  insists  that  it  has  the  right  arbitrarily, 
without  any  cause,  to  refuse  the  relator  (the  student) 
his  examination  and  degree.  It  seems  to  us  clear  that 
such  a  position  can  not  for  a  moment  be  entertained. 
The  circulars  of  the  respondent  indicate  the  terms  upon 
which  students  will  be  received,  and  the  rights  which 
they  were  to  acquire  by  reason  of  their  compliance  with 
the  rules  and  regulations  of  the  college  in  respect  to 
qualifications,  conduct,  etc.  When  a  student  matricu- 
lates under  such  circumstances,  it  is  a  contract  between 
the  college  and  himself  that,  if  he  complies  with  the 
terms  therein  prescribed,  he  shall  have  the  degree,  which 


30     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

is  the  end  to  be  obtained.  This  corporation  can  not  take 
the  money  of  the  student,  allow  him  to  remain  and  waste 
his  time  (because  it  would  be  a  waste  of  time  if  he  can  not 
get  a  degree)  and  then  arbitrarily  refuse,  when  he  has 
completed  his  term  of  study,  to  confer  upon  him  that 
which  they  have  promised — namely,  the  degree  of  doctor 
of  medicine,  which  authorizes  him  to  practise  that  so- 
called  science.  It  may  be  true  that  this  court  will  not  re- 
view the  discretion  of  the  corporation  in  the  refusal  for 
any  reason  or  cause  to  permit  a  student  to  be  examined 
and  receive  a  degree ;  but  where  there  is  an  absolute  and 
arbitrary  refusal  there  is  no  exercise  of  discretion.  It  is 
nothing  but  a  willful  violation  of  the  duties  which  they 
have  assumed.  Such  a  proposition  could  never  receive 
the  sanction  of  a  court  in  which  even  the  semblance  of 
justice  was  attempted  to  be  administered."  * 

Qualification  of  Previous  Practice. — The  particular 
period  of  practice  of  medicine  which  shall  be  accepted 
by  the  examining  board  or  other  body  having  authority 
to  grant  licenses,  as  tantamount  to  a  proper  diploma  or 
satisfactory  examination,  is  fixed  and  described  by  the 
statute  of  each  State  recognizing  such  mode  of  qualifi- 
cation, and  in  order  to  determine  whether  in  any  given 
State  a  candidate  is  qualified  by  his  former  practice  to 

*  People,  Cecil  vs.  Bellevue  Hospital  Medical  College,  38  N.  Y.  S.  R., 
418;  14  N.  Y.  Supp.,  490. 


THE   RIGHT   TO   PRACTISE  MEDICINE.  31 

receive  a  license  to  continue  in  his  practice  recourse  must 
be  had  to  the  statute  of  that  State.  If  by  a  fair  inter- 
pretation of  the  meaning  of  the  statute  the  candidate 
has  fulfilled  the  requirements,  nothing  remains  but  to 
grant  the  license  or  certificate;  if,  on  the  other  hand,  it 
does  not  appear  that  the  candidate  has  fulfilled  the  re- 
quirements  of  the  statute,  such  license  or  certificate 
should  be  refused.  A  recent  case  of  some  interest  arose 
in  Ehode  Island,  where  the  law  provides  that  a  physician 
should  have  "  reputably  and  honorably  "  engaged  in  the 
practice  of  medicine  prior  to  January  1,  1892.  The  ap- 
plicant, who  was  in  the  shoe  business,  took  up  the  study 
of  medicine  by  himself  during  the  year  1889.  In  the 
latter  part  of  that  year  he  began  to  practise,  after  which 
time  he  gave  his  whole  attention  to  the  practice  of  medi- 
cine, leaving  hi^  shoe  business  to  the  management  of 
clerks,  and  continued  his  practice  up  to  January  1,  1892, 
some  of  his  patients  being  satisfied  with  his  services  and 
some  not.  The  court  said :  "  There  is  no  evidence  that 
on  January  1,  1892,  he  had  come  to  be  regarded  by  the 
community  in  which  he  practised  as  a  skillful  and  suc- 
cessful practitioner,  and  therefore  had  acquired  the  hon- 
orable reputation  as  a  physician  necessary  to  qualify 
him  to  practise  contemplated  by  statute.  The  decision 
of  the  health  board  in  denying  a  certificate  is  eon- 
firmed."  * 

*  Paquin  vs.  State  Board  of  Health,  33  Atl.  R.,  870. 


32     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

In  Ohio  the  question  arose  some  years  after  the  pas- 
sage of  an  act  providing  that  ten  years  of  continuous 
practice  of  medicine  should  qualify  a  physician  for  a 
continued  practice,  whether  time  spent  in,  the  practice  of 
medicine  since  the  act  should  be  included  as  part  of  the 
ten  years.  The  majority  of  the  court  were  of  the  opin- 
ion it  should  he,  and  it  was  accordingly  so  held.* 

Registration  of  Certificate. — It  will  be  remembered 
that  the  law  generally  provides  that  the  physician  must 
register  his  certificate  or  license  with  some  designated 
county  officer  in  the  county  in  which  he  resides,  or,  if  he 
is  a  non-resident,  in  the  county  in  which  he  intends  to 
practise ;  but  with  the  exception  of  one  or  two  States  the 
statute  is  silent  as  to  the  right  of  a  physician  to  attend 
patients  in  counties  other  than  the  one  in  which  his  cer- 
tificate is  recorded.  Whether  or  not  this  right  does  exist, 
and  if  so  to  what  extent,  is  a  very  important  question, 
but  as  the  matter  is  regulated  by  statutes  which  differ 
in  the  several  States  no  general  rule  can  be  laid  down 
for  all  States;  an  examination,  however,  of  decisions 
which  have  been  rendered  on  the  subject  in  several  States 
will,  it  is  hoped,  lead  to  a  clear  understanding  of  the 
governing  principle. 

A  case  was  decided  in  the  supreme  court  in  !N'ew 
York  in  1890  upon  the  following  facts :  A  physician, 

*  Wirt  vs.  Cutler,  81  Ohio  St.,  34*7. 


THE  EIGHT  TO   PRACTISE   MEDICIKE.  33 

duly  licensed  by  the  State  board  and  registered  in  Kings 
Comity,  made  numerous  visits  to  a  patient  living  in 
Westchester  County.  The  court  said :  "  ISTo  new  registry 
is  needed  to  visit  a  patient  out  of  the  county.  The  fact 
that  a  physician  gives  two  days  in  a  week  out  of  his 
county  to  see  patients  does  not  make  a  new  practice  in 
a  new  county,  unless  intended  as  a  cover  for  a  real 
change  of  place.  It  is  simply  practising  medicine  in 
Kings  County  with  patients  in  another  county."  *  The 
court  intimated  that  the  opening  of  an  office  or  estab- 
lishing a  place  of  meeting  patients  in  another  county 
would  not  be  a  violation  of  the  law,  but  no  court  in  the 
State  seems  to  have  expressly  committed  itself  to  this 
extent. 

In  Texas  the  law  requires  the  physician  to  register 
his  certificate  with  the  clerk  of  the  district  court  in.  the 
county  in  which  he  may  '^reside  or  sojourn."  Under 
this  statute  the  practitioner  must,  upon  changing  his 
residence  to  another  county,  register  his  certificate  again 
with  the  proper  officer  in  the  county  to  which  he  has 
removed,  f 

And  so  in  Pennsylvania,  under  a  similar  statute,  a 
practitioner  who  is  properly  registered  in  one  county 
and  opens  and  maintains  an  office  in  another  county 

*  Martiner  vx.  Kirk,  .55  Hun.,  474. 
f  Hilliard  vs.  State,  7  Tex.  App.,  69. 


34     THE  LAW  [N  ITS  EELATIONS  TO  PHYSICIANS. 

must  register  his  certificate  in  such  other  county  as  a 
"  sojourner/'  * 

It  seems  fair  to  conclude  from  these  cases  that  in 
all  States  having  statutes  similar  to  those  construed, 
providing  that  a  license  or  certificate  shall  be  granted  by 
a  State  board  which  shall  be  good  in  any  part  of  the 
State,  and  which  must  be  filed  with  the  proper  county 
officer  in  the  county  in  which  the  practitioner  resides, 
the  practitioner  may  safely  have  and  attend  jDatients 
outside  of  the  county  in  which  his  certificate  or  license  is 
filed ;  but  it  can  not  be  safely  advised  that  he  would  have 
the  right  to  open  an  office  outside  of  his  county,  or  have 
a  regular  place  of  meeting  patients  without  the  county, 
or  even  associate  himself  in  partnership  with  a  physician 
where  the  partnership  office  was  located  without  the 
county,  until  he  had  filed  or  registered  his  certificate  or 
license  in  such  other  county,  f 

In  Indiana  the  license  to  practise  was  formerly  not 
granted  by  a  State  board  and  recorded  in  the  particular 
county  in  which  the  physician  intended  to  practise,  but 
the  license  itself  was  granted  by  the  clerk  of  the  district 
court  of  the  county  in  which  the  physician  intended  to 

*  Ege  vs.  Commonwealth,  9  Atl  R.,  4Y1. 

■t  In  Illinois,  the  general  character  of  the  law  of  which  conforms  to 
the  above  rule,  it  is  expressly  provided  that  "  any  person  practising  in 
another  county  shall  record  the  certificate  in  like  manner "  in  such 
other  county.     Laws  1899, 


THE  RIGHT  TO   PRACTISE  MEDICINE.  35 

practise.  The  law  of  that  State  was  therefore  construed 
much  more  strictly,  necessitating  that  a  license  be  taken 
out  in  every  county  into  which  the  physician's  practice 
extended.* 

Chief-Justice  Elliott,  of  the  supreme  court  of  Indi- 
ana, in  an  opinion  in  which  he  held  the  law  to  be  as 
above  stated,  expressed  his  opinion  regarding  a  qualifi- 
cation of  this  construction  in  the  following  words :  "  It 
may  be  that  there  are  cases  where  the  law  would  hold  that 
the  statute  does  not  apply  in  its  full  rigor,  as  where 
there  is  an  emergency  demanding  prompt  action,  or 
where  there  is  a  professional  visit  for  consultation,  or 
the  call  is  made  because  of  some  special  skill  or  ability  of 
the  physician  in  a  particular  branch  of  his  profession."  f 

*  The  following  is  the  substance  of  the  Indiana  law  as  it  was  en- 
acted in  1897  and  amended  March  3,  1899:  "  The  applicant  must  be  a 
bona  fide  resident  of  the  county  and  State.  Two  freeholders  must  make 
affidavit  as  to  the  moral  character  of  the  applicant,  and  to  the  identity 
of  the  applicant  and  the  person  mentioned  in  the  diploma.  The  State 
board  of  medical  registration  and  examination  will  examine  the  same, 
and,  if  satisfactory,  issue  its  certificate ;  then  the  county  clerk  is  author- 
ized to  issue  a  license  to  practise  medicine,  surgery,  and  obstetrics  with- 
in the  State  of  Indiana,  In  case  of  change  of  residence  this  license 
may  be  filed  with  the  clerk  of  another  county  and  a  new  license  ob- 
tained. A  license  will  permit  its  owner  to  practise  in  any  county  in  the 
State,  but  it  must  be  Prom  the  clerk  of  the  county  in  which  the  appli- 
cant resides.  If  there  be  a  change  of  residence,  however,  a  new  license 
must  be  obtained.  In  case  a  diploma  is  not  considered  Avorthy  of  rec- 
ognition, the  applicant  is  given  an  opportunity  to  pass  an  examination." 
— From  3fedical  and  Surgical  Monitor,  March  15,  1899,  p.  98. 

f  Orr  vs.  Meeks,  111  Ind.,  40. 


36     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Wght  yesiTs  later,  in  1894,  a  case  was  decided  by  the 
appellate  court  of  Indiana  approving  of  Justice  Elli- 
ott's remarks  so  far  as  they  relate  to  emergency  cases, 
but  refusing  to  hold  that  the  law  would  permit  a  physi- 
cian to  enter  the  county  and  practise  "  because  of  some 
special  skill  or  ability  of  the  physician  in  a  particular 
branch  of  his  profession/'  In  this  case  the  physician 
was  called  from  an  adjoining  county  to  perform  an  am- 
putation immediately  necessary  to  save  the  patient's  life, 
he  being  the  nearest  physician  with  the  requisite  skill. 
After  performing  the  operation  he  attended  the  patient 
and  dressed  the  wound  several  times.  The  court  held 
that,  the  county  seat  being  sixteen  miles  away,  to  which 
place  it  would  have  been  necessary  to  go  for  a  license, 
it  would  have  been  impracticable  to  have  obtained  the 
license  before  performing  the  operation,  and  therefore 
the  physician  was  legally  justified  in  amputating  the 
leg,  but  that  his  subsequent  visits  were  unlawful.* 

In  States  in  which  the  license  to  practise  is  issued 
by  a  county  officer  entitling  the  physician  to  practise  in 
that  county,  as  it  formerly  was  in  Indiana,  instead  of  by 
a  State  officer  or  board,  it  will  be  necessary  to  procure  a 
license  in  each  county  into  which  the  physician's  prac- 
tice extends. 


*  Board  of  Commissioners  of  Adams  Co.  vs.  Cole,  9  Ind.  App.,  474; 
36  N.  E.  Rep.,  yi2. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  37 

Excusable  Failure  to  Register  Certificate. — There 
are  certain  circumstances  under  which  the  physician  is 
legally  excusable  for  failing  to  properly  file  his  certifi- 
cate before  practising.  Such  circumstances  may  result 
through  ignorance  of  law  or  inadvertence  on  the  part 
of  the  physician,  as,  where  he  honestly  endeavored  to 
comply  with  the  law,  but  through  error  filed  the  certifi- 
cate with  the  wrong  officer.* 

Or  through  ignorance  of  fact,  as,  where  the  physi- 
cian delivered  his  certificate  with  the  proper  fee  for 
recording  the  same  to  a  third  party,  who  promised  to 
record  it  at  once,  but  through  sickness  or  other  cause 
failed  to  keep  his  promise,  f 

Or  such  circumstances  may  result  from  the  neglect 
or  carelessness  of  the  officer  whose  duty  it  is  to  register 
the  certificate,  as,  where  the  physician  applied  to  the 
proper  officer  to  be  registered,  but  was  informed  by  the 
officer  that  he  could  not  register  him  for  he  had  no  book 
in  which  to  enter  the  record.;!; 

Under  any  of  these  circumstances  the  physician  must 
have  acted  in  good  faith  in  his  original  endeavor  to  com- 
ply with  the  law,  and  if  he  desires  the  protection  of  the 
law  to  continue  he  must,  as  soon  as  he  learns  of  the  fail- 

*  Mayor,  etc.,  of  City  of  New  York  vs.  Bigelow,  34  N.  Y.  .Supp.,  92 ; 
86  N.  Y.  S.  R.,  163;  13  Misc.,  42. 

f  Pettit  vs.  State,  28  Tex.  App.,  240;   14  S.  W.  Rep.,  127. 
%  Parish  vs.  Fobs,  '75  Ga.,  439. 


38     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIAN'S. 

Tire  of  his  effort  to  comply,  use  all  due  means  to  secure 
the  prompt  filing  or  recording  of  his  certificate. 

Itinerant  and  Traveling  Doctors,  Who  are. — The 

statutes  of  several  States  contain  provisions  relating  to 
itinerant  or  traveling  doctors,  which  either  impose  bur- 
dens upon  them  or  exclude  them  entirely  from  the  right 
to  practise.  While  the  question  of  who  comes  within  the 
meaning  of  these  statutes  must  be  determined  in  the 
light  of  the  particular  statute,  the  law  generally  is  very 
well  illustrated  by  the  two  cases  following : 

A  statute  in  Texas  is  as  follows :  "  From  every  physi- 
cian, surgeon,  oculist,  or  medical  or  other  specialist  of 
any  kind,  traveling  from  place  to  place  in  the  practice 
of  his  profession,  an  annual  tax  of  fifty  dollars  in  each 
county  where  he  may  practise  his  profession  "  shall  be 
collected.  A  medical  specialist  having  two  offices,  one 
at  his  home  and  one  in  an  adjoining  county,  where  he 
meets  patients  twice  each  month,  is  not  within  the  mean- 
ing of  this  law.  The  court  said :  "  Here  the  physician 
or  specialist  had  two  places  of  business;  part  of  his  time 
he  spent  at  one  and  the  other  part  of  his  time  at  the 
other  place.  This  does  not  carry  with  it  the  idea  of 
itinerancy,  or  traveling  from  place  to  place,  as  we  under- 
stand the  meaning  of  this  term,  within  the  provisions  of 
the  law."  * 

*  Hairston  vs.  State,  36  Tex.  Crim.  Rep.,  470;  3*7  S.  W.  Rep.,  858. 


THE  RIGHT  TO   PRACTISE  MEDICINE.  39 

Rhode  Island,  among  other  restrictions  upon  the 
medical  profession,  provides  that  nothing  shall  "  author- 
ize any  itinerant  doctor  to  register  or  to  practise  medi- 
cine in  any  part  of  the  State."  A  physician  who  resided 
in  Boston,  and  made  a  specialty  of  the  treatment  of  ca- 
tarrh, made  regular  visits  to  Providence  in  the  practice 
of  his  specialty.  The  evidence  showed  that  he  had  also 
been  accustomed  to  visiting  Worcester,  New  Bedford, 
Springfield,  and  Lowell,  Massachusetts.  The  State 
board  of  health  decided  that  he  was  to  be  regarded  as  an 
itinerant  doctor,  within  the  meaning  of  the  statute. 
Upon  review  of  the  decision  by  the  supreme  court  the 
conclusion  of  the  board  was  approved  of  and  affirmed.* 

These  two  cases  show  facts  not  very  greatly  differing, 
yet  it  is  evidently  between  the  two  that  the  line  of  de- 
marcation must  be  drawn. 

What  Constitutes  practising  Medicine. — It  has  been 
observed  that  the  law  does  not  exclusively  recognize  any 
particular  system  of  medicine  or  class  of  practitioners, 
the  legal  signification  of  the  term  doctor  being  simply 
a  practitioner  of  physic.  The  statutes  of  several  States 
have  defined  what  shall  constitute  practising  medicine, 
with  a  tendency  to  extend  rather  than  restrict  the  judi- 
cial definition  of  the  term. 

It  has  been  held  that  one  exercising  the  functions 

*  Evans  vs.  State  Board  of  Health,  33  Atl.  R.,  87S  (R.  I.). 


40     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

of  a  clairvoyant  in  the  treatment  of  disease  is  rendering 
"  medical  services."'  *  x\lso  one  practising  Christian 
Science  comes  within  the  meaning  of  the  statute  making 
it  unlawful  for  one  not  duly  qualified  to  "  operate  on, 
profess  to  heal,  or  prescribe  for  or  otherwise  treat  any 
mental  or  physical  ailment  of  another."  f  Midwifery 
has  been  held  to  form  an  important  department  of  sur- 
gery, and  to  come  within  the  meaning  of  an  act  prohib- 
iting the  practice,  by  persons  not  qualified,  of  medicine 
and  surgery  in  any  of  its  branches.  J  And  so  one  giving 
electric  treatment  comes  within  the  law  regulating  the 
"  practice  of  medicine  and  surgery."  *  And  also  one 
who  professes  and  practises  bonesetting  and  reducing 
sprains,  swellings,  and  contractions  of  the  sinews,  by 
friction  and  fomentation,  comes  within  the  operation 
of  the  statute  regulating  the  "practice  of  physic  and 
surgery."  |  j 

While  the  definitions  given  seem  plain  and  explicit,  it 
is  often  a  very  nice  question  whether  one,  not  having  the 
legal  qualification  to  practise  medicine  and  surgery,  has 
performed  acts  which  will  render  him  amenable  to  the 


*  Bibber  va.  Simpsou,  59  Me.,  181. 

■I- State  vs.  Buswell,  40    Neb.,  158;   58    N.   W.    Rep.,    728.      See 
State  vs.  Mylod,  ante,  p.  24. 

X  People  vs.  Arendt,  60  111.  App.,  89. 

*  Davidson  vs.  Bohlman,  37  Mo.  App.,  576. 
II  Hewitt  vs.  Charier,  16  Pick,  353. 


THE  EIGHT  TO  PRACTISE  MEDICINE.  41 

law.  Whether  or  not  a  particular  case  comes  within 
the  law  is  usually  a  question  of  fact  for  the  jury  to  de- 
termine. Upon  what  evidence  a  jury  will  find  that  one 
has  or  has  not  practised  medicine  it  is  impossible  to  say 
with  any  degree  of  certainty,  there  being  so  many  things, 
aside  from  the  testimony  given,  that  the  jury  may  take 
into  consideration.  The  best  manner  of  illustrating  this 
is  by  examining  the  facts  upon  which  juries  have  passed 
and  considering  their  verdicts. 

Illustrations. — In  the  case  of  Eichardson  vs.  State, 
decided  in  Arkansas  in  1886,  the  State  introduced  the 
following  evidence  to  show  that  the  defendant  practised 
medicine : 

Miss  Alice  Stewart  said :  "  I  am  acquainted  with  J. 
K.  Eichardson.  I  was  acquainted  with  Mrs.  Hattie 
Groff.  I  was  present  on  two  occasions  when  J.  K.  Eich- 
ardson was  at  Mrs.  Goff's  when  Mrs.  Goff  requested  me 
to  get  some  money  of  hers  and  give  it  to  J.  K.  Eich- 
ardson. Mrs.  Goff  was  afflicted  with  dropsy  and  cancer. 
Dr.  Brandon  treated  her  for  dropsy.  I  saw  J.  K.  Eich- 
ardson there  with  Dr.  Brandon  at  Mrs.  GofE's  several 
times,  with  H.  Brandon.  J.  K.  Eichardson  came  sev- 
eral times  by  himself  and  applied  medicine  and  plasters 
to  Mrs.  Goff's  cancer.  I  understood  that  J.  K.  Eichard- 
son had  charge  of  the  money  that  I  handed  him  at  the 
request  of  Mrs.  Goff."  Upon  cross-examination  witness 
said:  "I  might  have  sworn  on  the  trial  before  of  this 


4:2     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

cause,  that  I  did  not  know  anything  about  a  contract 
with  J.  K.  Kichardson  and  Mrs.  Goff ." 

The  defendant  offered  in  his  behalf  a  deposition  by 
H.  Brandon,  who  said :  "  That  during  the  fall  and  sum- 
mer of  last  year  (1885)  I  was  practising  medicine  in 
the  city  of  Eureka  Springs,  Arkansas.  That  while  there, 
perhaps  in  the  latter  part  of  September  or  October,  1885, 
I  met  Dr.  J.  K.  Eichardson,  who  was  not  eligible  to  the 
practice  of  medicine.  At  the  time  he  spoke  to  me  he 
claimed  to  be  a  student  of  medicine,  and  said  he  wished 
to  continue  his  studies  under  me ;  that  if  I  would  furnish 
him  the  books,  and  give  him  all  the  instructions  I  could, 
he  would  compensate  me  as  much  as  he  could;  said  he 
had  but  little  money,  but  was  in  possession  of  a  very 
excellent  remedy  for  curing  cancer.  I  told  him  if  he 
would  give  me  his  treatment  for  cancer  that  I  would  get 
the  books  and  take  him  as  a  student  and  give  him  in- 
structions as  much  as  possible,  to  which  we  agreed.  He 
then  went  into  my  office  as  a  student  of  medicine.  While 
he  was  with  me  I  treated  several  cases  of  cancer,  among 
whom  was  a  Mrs.  Goff.  I  agreed  to  doctor  her  for  five 
dollars  a  week,  which  she  paid.  At  different  times  I  told 
Dr.  Eichardson  to  go  and  see  the  case  and  report  to  me 
the  condition  of  the  same.  I  told  him  on  several  occa- 
sions that  if  any  one  wanted  to  pay  him  any  money  he 
might  receive  it  and  report  the  same  to  me,  which  he 
did  on  one  or  two  occasions.    Mrs.  Goff  paid  him  some 


THE  RIGHT  TO   PRACTISE  MEDICINE.  43 

money,  which  he  turned  over  to  me.  Dr.  Eichardson 
never  collected  any  money  that  he  did  not  turn  over  to 
me  while  he  was  in  my  office  to  my  knowledge." 

In  this  case  the  jury  apparently  disregarded  the  depo- 
sition of  Dr.  Brandon  and,  looking  alone  to  the  evidence 
given  on  behalf  of  the  State,  found  that  the  defendant 
treated  Mrs.  Goff  for  a  certain  disease  and  received 
money  for  the  same.* 

In  the  case  of  Nelson  vs.  State,  decided  in  Alabama 
in  1893,  the  evidence  showed  that  the  defendant,  being 
called  to  attend  a  child  who  was  sick,  responded  to  the 
call  and  administered  medicines;  that  he  called  once  or 
twice,  but  did  not  make  any  charge  and  did  not  receive 
any  pay;  that  he  was  called  doctor  by  his  neighbors. 
Defendant  in  his  own  behalf  testified  that  he  called  upon 
the  child  and  administered  certain  herbs  that  he  found 
in  the  woods ;  that  he  did  not  claim  to  be  a  physician  or 
represent  himself  to  be  one,  and  that  he  made  no  charge 
for  his  visits,  and  received  nothing  therefor.  The  jury 
found  the  defendant  guilty  of  practising  medicine;  but 
the  supreme  court,  in  reviewing  the  case  on  appeal,  re- 
versed the  judgment  and  sent  the  case  back  to  the  cir- 
cuit court  for  a  new  trial. 

Justice  Coleman,  in  delivering  the  opinion,  said :  "  It 
was  the  duty  of  the  court  to  instruct  the  jury,  as  a  matter 

*  Richardson  vs.  State,  4*7  Ark.,  562. 


44     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

of  law,  what  acts  amounted  to  a  violation  of  the  statute, 
and  it  was  for  the  jury  to  ascertain  whether  the  facts 
existed.  We  are  of  the  opinion  that  it  is  not  a  violation 
of  the  statute  for  a  person  who  does  not  solicit  patron- 
age, who  does  not  hold  himself  out  as  a  physician,  and 
does  not  pretend  to  be  a  physician,  but  simply  advises  or 
gives  medicine  to  sick  persons,  merely  as  a  neighbor  or 
friend,  and  makes  no  charge,  and  does  not  expect  any 
compensation  for  his  services."  * 

In  the  case  of  State  vs.  Hale,  tried  in  Missouri  in 
1852,  the  evidence  did  not  show  that  the  defendant  re- 
ceived any  compensation  for  the  services  in  question. 
The  court  refused  to  instruct  the  jury  "  that  unless  they 
believed  from  the  evidence  that  the  defendant  received 
compensation  for  his  services  as  a  physician,  that  they 
must  find  him  not  guilty,"  but  instructed  "  that  unless 
the  jury  believes  from  the  evidence  that  the  defendant 
practised  medicine  for  compensation  and  reward,  then  he 
is  not  guilty,  but  the  State  is  not  required  to  prove  the 
actual  receipt  of  such  compensation,"  upon  which  in- 
struction the  jury  found  the  defendant  guilty.  The  stat- 
ute upon  which  this  prosecution  was  based  was  as  fol- 
lows :  "  No  person  or  copartnership  of  persons  shall  fol- 
low the  practice  of  law  or  medicine,  in  whole  or  in  part, 
as  a  business  in  this  State  without  first  obtaining  a  li- 

*  Nelson  vs.  State,  91  Ala.,  79 ;  12  So.  Rep.,  421. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  45 

cense  to  follow  such  profession  according  to  the  provi- 
sions of  this  act."  The  supreme  court,  in  reviewing  the 
case  on  appeal,  held  that  the  instruction  given  to  the 
jury  by  the  trial  court  correctly  stated  the  law.  applicable 
to  the  case.* 

It  will  be  observed  from  these  illustrations  that 
in  all  three  cases  the  Juries  found  the  defendants  guilty. 
In  the  Kichardson  case  the  supreme  court,  upon  appeal, 
criticised  the  verdict,  and  intimated  that  it  was  an  in- 
justice, but,  finding  no  error  of  law  in  the  trial,  it  de- 
clined to  interfere  with  the  verdict.  In  the  Nelson  case 
the  supreme  court  found  that  the  trial  judge  had  erred 
in  giving  or  refusing  to  give  certain  instructions  to  the 
jury,  and  therefore  sent  the  case  back  for  a  new  trial 
with  statements  of  law  relative  to  the  evidence  adduced, 
which  probably  resulted  in  a  different  verdict  on  the  new 
trial.  While  in  the  Hale  case  the  supreme  court  ex- 
pressed its  approval  of  the  instruction  given,  and  af- 
firmed the  judgment  without  any  comments  upon  the 
verdict. 

A  ease  apparently  in  conflict  with  the  Hale  case 
comes  from  Ehode  Island;  the  Ehode  Island  case  is, 
however,  based  upon  a  statute  providing  that  the  unqual- 
ified practitioner  shall  not  practise  medicine  or  surgery 
"for  reward  or  compensation."     Under  such  a  stat- 

*  State  vs.  Hale,  15  Mo.,  60*7. 


46     THE  LAW  IX  ITS  RELATIONS  TO  PHYSICIANS. 

■ute.  the  instruction  that  "  if  the  jury  find  that  the  de- 
fendant received  no  reward  or  compensation  for  his  serv- 
ices, they  must  find  for  the  defendant/'  is  proper,  and 
the  court  -would  commit  an  error  if  he  refused  to  give 
such  an  instruction.* 

In  view,  however,  of  the  statute  existing  in  Rhode 
Island  there  is  nothing  in  this  case  really  in  conflict  with 
the  law  as  expressed  in  State  vs.  Hale. 

In  the  case  of  Benham  vs.  State,  arising  in  Indi- 
ana, the  evidence  showed  that  the  defendant  issued  circu- 
lars signed  Dr. ,in  which  he  claimed  that  his  "treat- 
ment "  of  his  "  patients "  would  effect  a  "  complete 
cure  "  of  the  opium  habit.  He  also  issued  a  number  of 
letters  from  former  patients  addressed  to  him  as  "  Doc- 
tor,''  testifying  to  the  efficacy  and  success  of  his  "  treat- 
ment "  of  the  opium  habit.  The  heading  of  the  bills  and 
receipts  given  by  him  to  his  patients  was :  "  Office  of  Dr. 

,  No. Street, ,  Indiana."   The  counsel 

for  defendant  contended  that  the  opium  habit  was  not  a 
disease;  the  jury,  however,  rendered  a  verdict  of  guilty, 
and  the  supreme  court,  upon  reviewing  the  case,  was  of 
the  opinion  that  the  verdict  was  fairly  sustained  by  the 
evidence,  f 

In  a  Michigan  case,  a  party  who  exhibited  upon  a 
sign  "  Dr. ,  Magnetic  Healer,"  and  who  was  called 

*  State  vs.  Pirlot,  38  Atl.  R.,  656  (R.  I.). 

t  Benham  vs.  State,  116  Ind.,  112;  18  N.  E.  Rep.,  454. 


THE  RIGHT   TO   PRACTISE  MEDICINE.  47 

to  visit  and  treat  sick  persons,  and  who  made  a  certifi- 
cate of  death  and  a  report  of  infectious  diseases,  was 
found  to  be  holding  himself  forth  as  a  medical  practi- 
tioner.* 

The  selling  of  patent  or  proprietary  medicines  by  one 
who  does  not  pretend  to  diagnosticate  a  disease  is  in  no 
way  a  violation  of  an  act  prohibiting  the  practice  of 
medicine  and  surgery;  yet  if  one  examines  patients, diag- 
nosticates their  diseases,  and  then  prescribes  or  sells  his 
own  proprietary  remedies,  he  is  practising  medicine,  not- 
withstanding the  ostensible  and  apparent  motive  of  the 
defendent  may  be  the  sale  of  his  medicines,  f 

And  a  man  who  travels  from  place  to  place  with  a 
band  of  music  or  other  means  of  collecting  people  to- 
gether for  the  purpose  of  selling  them  medicines,  and  in 
his  speeches,  advertisements,  and  pamphlets  sets  forth 
the  sj'^mptoms  of  disease  and  prescribes  ten  different 
remedies  as  capable  of  curing  all  of  such  diseases,  is 
practising  medicine.  + 

In  1831  the  supreme  court  of  Ohio  held  that  pre- 
scribing and  administering  medicine  to  two  people  for 
a  fee  sufficiently  shows  the  party  to  have  acted  in  the 
capacity  of  a  physician.*     And  in  1879  the  court  of 


*  People  vs.  PhippiT),  10  Mich.,  6 ;  87  N.  W.  Rep.,  888. 

f  State  vs.  Van  Doran,  109  N.  C,  864;  14  S.  E.  Rep.,  -62. 
X  People  vs.  Blue  Mountain  Joe,  129  111.,  370. 

*  Jordan  vs.  Overseers  of  Dayton,  4  Ohio,  294. 


48     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

appeals  of  Texas  held  that  the  proof  of  attending  and 
prescribing  for  a  single  case  by  one  not  legally  qualified 
to  practise  medicine  was  sufficient  to  support  a  convic- 
tion for  unlawfully  practising  medicine.* 

In  accordance  with  the  spirit  manifested  in  the  above 
decision,  the  supreme  court  of  Nova  Scotia  held  that 
one  who  applied  plasters  to  tumors  and  cancers  and  gave 
directions  for  poulticing  them  was  practising  medicine,  f 

It  will  be  clearly  seen  from  the  preceding  illustra- 
tions that  it  is  the  policy  of  the  law  to  protect  the  peo- 
ple from  the  ignorance  and  unskillfulness  of  the  pre- 
tender or  quack  in  all  branches  of  medicine.  The  law 
does  not,  however,  go  to  the  extent  of  including  within 
its  restrictions  one  who  professes  to  cure  by  manipula- 
tion of  the  hands,  by  rubbing,  kneading,  and  pressure, 
such  treatment  being  considered  by  the  courts  to  be 
harmless,  if  not  beneficial,  and  to  not  come  within  the 
scope  of  the  practice  of  either  medicine  or  surgery.  J 

In  the  trial  of  a  case  in  the  United  States  circuit 
court,  of  the  sort  above  considered,  the  question  arose 
whether  or  not  the  patient,  who  was  called  as  a  witness, 
could  be  compelled  to  produce  the  medicine  he  had  re- 
ceived from  the  defendant  charged  with  practising  medi- 
cine unlawfully.     The  court  held  that  he  could  not. 

*  Antle  vs.  State,  6  Tex.  App.,  202. 

f  Provincial  Medical  Board  vs.  Bond,  22  N.  S.,  153. 

J  Smith  vs.  Lane,  24  Hun,  632. 


THE  RIGHT  TO   PRACTISE  MEDICINE.  49 

Had,  however,  the  case  been  one  of  malpractice,  it  is 
altogether  probable  that  he  would  have  been  required  to 
produce  the  medicine.* 

Emergency  Cases. — The  statutes  of  many  States  ex- 
cept from  their  operation  services  rendered  in  case  of 
emergency.  The  question  of  what  is  an  emergency  was 
considered  by  the  supreme  court  of  California,  in  1886, 
in  the  case  of  People  vs.  Lee  Wah. 

In  this  case  two  women  who  had  been  unable  to  ob- 
tain relief  from  their  physicians  called  upon  defendant 
and  stated  their  ailments.  He  prepared  herbs  of  his  own 
selection  and  delivered  them  to  the  women,  who  took 
them  as  directed.  The  instructions  given  by  the  trial 
judge  to  the  jury,  which  were  approved  by  the  supreme 
court,  state  the  law  fully  as  to  what  is  an  emergency. 
The  following  is  an  extract  from  these  instructions : 
"  Two  ladies  have  testified  before  you  and  stated  that 
their  condition  was  deplorable;  that  they  consulted  in 
vain  other  physicians;  and  that  they  regarded  them- 
selves, and  were  regarded  by  their  friends  and  physi- 
cians, as  incurable,  and  that  they  repaired  to  this  de- 
fendant as  a  last  resort.  The  ladies  stated  upon  their 
part  it  was  an  emergency — an  exigency  in  which  death 
on  the  one  hand,  and  submitting  themselves  to  that  treat- 
ment on  the  other,  were  the  only  alternatives.    I  instruct 

*  United  States  vs.  Williams,  5  Cranch.  C.  C,  62. 


50     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

you  that  the  emergency  contemplated  by  the  statute  is 
not  such  as  this  case  suggests.  It  means  a  case  in  which 
the  ordinary  medical  practitioners  of  the  schools  provid- 
ed for  by  the  statutes,  who  are  provided  with  the  proper 
diplomas,  and  have  submitted  themselves  to  the  proper  ex- 
amination, are  not  readily  obtainable.  This  is  an  emer- 
gency— as  where  the  exigency  is  of  so  pressing  a  char- 
acter that  some  kind  of  action  must  be  taken  before  such 
parties  can  be  found. ...  If,  however,  a  party  is  satisfied 
that  another  school  of  physicians  or  another  individual 
can  render  him  more  efficient  aid — more  beneficial  serv- 
ices than  others — and  he  therefore  seeks  his  aid,  that  is 
not  such  an  emergency  as  the  statute  contemplates."  * 

License  from  Irregularly  appointed  Board. — A  physi- 
cian can  not  be  prosecuted  for  practising  medicine  and 
surgery  unlawfully  because  his  license  is  granted  by  a 
board  of  medical  examiners  which  is  improperly  consti- 
tuted, the  appointment  of  the  members  being  irregular, 
or  even  unconstitutional.  Such  a  body  would  be  a  de 
facto  board,  and  the  certificates  or  licenses  issued  by  it 
would  be  sufficient  to  protect  the  parties  to  whom  they 
were  issued  from  prosecution  under  the  statute,  f 

Improper  Refusal  of  Certificate  no  Defense. — In  a 
prosecution  for  practising  medicine  and  surgery  without 

*  People  vs.  Lee  Wah,  71  Cal.,  80 ;  11  Pac.  Rep.,  851. 
f  Brown  vs.  People,  11  Colo.,  109;  17  Pac.  Rep.,  104;  Harding  ««• 
People,  10  Colo.,  387;  15  Pac.  Rep.,  727. 


THE  RIGHT  TO  PRACTISE  MEDICINE.  51 

a  certificate  tlie  defendant  can  not  show  as  a  de- 
fense that  the  board  of  examiners  acted  improperly 
or  unlawfully  in  refusing  to  grant  him  a  certifi- 
cate.* 

Revocation  of  License. — The  power  to  revoke  as  well 
as  to  grant  licenses  is  generally  conferred  upon  the  ex- 
amining board.  The  law  conferring  this  power  upon  the 
board  has  been  attacked  upon  the  ground  that  it  is  un- 
constitutional, being  a  judicial  function,  and  therefore 
only  to  be  vested  in  the  courts ;  but  such  objections  have 
been  universally  held  to  be  ill  founded.  The  grounds 
usually  designated  by  the  statute  upon  which  the  board 
is  empowered  to  revoke  a  certificate  or  license  are  "  un- 
professional, dishonorable,  and  immoral  conduct."  The 
careful  examination  of  a  few  cases  of  this  character  will 
best  show  what  conduct  the  courts  consider  as  being  un- 
professional, dishonorable,  and  immoral. 

Advertising. — The  word  "unprofessional,"  as  used 
in  those  statutes,  has  been  judicially  defined  as  being 
synonymous  with  dishonorable  and  not  referring  to 
matters  of  professional  ethics, f  as  it  is  considered  un- 
professional from  an  ethical  point  of  view  for  a  physi- 
cian to  advertise  himself  or  his  business;  yet,  if  the 
advertisements  contained  no  objectionable  matter,  such 

*  Krowenstat  vs.  State,  1 5  Ohio  Cir.  C.  R.,  73. 

•|-  State  vs.   State   Medical  Examining  Board,   32  Minn.,   324 ;    20 
N.  W.  Rep.,  238. 


52     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

advertising  would  not  be  ground  for  revoking  his  certifi- 
cate. 

If,  however,  such  advertisement  contained  matter 
which  the  physician  knew  to  be  false,  and  it  was  made 
for  the  purpose  of  deceiving  and  imposing  upon  the  pub- 
lic, such  conduct  would  be  "  unprofessional  and  dishon- 
orable "  in  the  sense  contemplated  by  the  statute.  For 
instance,  an  advertisement  which  asserted  the  physi- 
cian's ability  to  speedily  cure  all  chronic  nervous,  blood, 
and  skin  diseases  of  both  sexes,  also  all  diseases  of  the 
eye  and  ear,  without  injurious  drug  or  hindrance  from 
business ;  all  old,  lingering  constitutional  diseases,  where 
the  blood  is  impure,  causing  ulcers,  blotches,  sore  throat 
and  mouth,  pains  in  the  head  and  bones,  cured  for  life, 
etc.,  was  held  to  be  "unprofessional  conduct  of  the 
grossest  kind."  * 

Misrepresenting:  the  Character  of  Disease. — The  stat- 
utes of  Ontario  provide  that  a  license  may  be  revoked 
for  "infamous  or  disgraceful  conduct  in  a  professional 
respect."  A  physician  represented  to  patients  in  the  last 
stages  of  consumption  that  they  were  suffering  from 
catarrhal  bronchitis  and  that  he  could  cure  them,  by 
strength  of  which  representation  he  obtained  money 
from  them.  The  court  said :  "  It  was  certainly  conduct 
disgraceful  in  the  common  judgment  of  mankind,  and 

*  State  vs.  State  Board  of  Medical  Examiners,  34  Minn.,  391 ;  26 
N.  W.  Rep.,  125. 


THE  RIGHT  TO  PRACTISE  MEDICIXE.  53 

much  more  in  a  professional  respect."  Moreover,  it  is  a 
very  serious  question  whether  such  conduct  does  not 
amount  to  the  crime  of  obtaining  money  under  a  false 
pretense.*  This  question  is  examined  under  the  head 
of  Criminal  Liability. 

Concealing  a  Foetus. — A  case  of  considerable  inter- 
est once  arose  in  Montana,  and  because  of  its  interest  it 
is  discussed  at  length. 

A  complaint  was  filed  with  the  State  board  of  medi- 
cal examiners  for  the  purpose  of  revoking  the  defend- 
ant's license  for  unprofessional,  dishonorable,  and  im- 
moral conduct.  The  complaint  stated  in  substance  that 
the  defendant  placed  in  the  furnace  a  package  contain- 
ing a  headless  foetus,  about  seven  months  old,  with  in- 
tent to  destroy  the  same  and  conceal  its  birth;  that  at 
the  coroner's  inquest  over  the  foetus  the  defendant  testi- 
fied that  he  had  been  called  to  attend  a  woman  who  suf- 
fered a  miscarriage ;  that  while  being  delivered  the  head 
of  the  infant  became  detached;  that  the  patient  from 
whom  the  foetus  was  taken  asked  not  to  have  her  name 
made  public ;  he  therefore  refused  to  disclose  the  name, 
but  stated  that  on  the  following  day  he  would  state  the 
name  to  the  coroner,  who  would  use  his  discretion  in  the 
matter.  That  on  the  following  day  defendant  refused 
to  disclose  the  name  of  the  patient,  because  she  had  left 
the  State,  and,  without  her  presence  to  explain  her  con- 

*  Re  Washington,  Q.  B.,  23  Ont.  Rep.,  299. 


54     THE  LAW  m  ITS  KELATIONS  TO  PHYSICIANS. 

dition  at  the  time  the  foetus  was  taken  from  her,  his  an- 
swer would  incriminate  him.  The  defendant  was  tried 
by  the  board  of  medical  examiners  and  found  gidlty 
and  his  license  revoked.  He  appealed  to  the  district 
court,  and  was  there  tried  and  found  guilty.  From  that 
court  an  appeal  was  taken  to  the  supreme  court,  which. 
Justice  Harwood  dissenting,  reversed  the  decision  of 
the  district  court,  basing  the  reversal  upon  the  follow- 
ing reasoning: 

Examining  the  complaint  carefully,  it  will  be  found 
that  it  states  that  defendant  placed  in  the  furnace  a 
headless  foetus,  with  intent  to  destroy  the  same  and  con- 
ceal its  birth.  Conceding  that  the  evidence  fully  sustains 
this  allegation,  there  is  no  unprofessional,  dishonorable, 
or  immoral  conduct  shown.  It  is  well  known  that  prema- 
ture deliveries  are  liable  to  occur  through  accident  or 
physical  weakness  of  the  mother,  and  at  such  times  the 
attendance  of  a  physician  is  necessary.  In  this  case 
neither  the  complaint  alleges  nor  the  evidence  shows  that 
the  miscarriage  was  procured  by  the  defendant,  and  the 
law  will  not  presume  him  to  have  been  guilty  of  a  crimi- 
nal act.  It  is  quite  natural  that  the  defendant  should 
have  become  possessed  of  the  foetus,  and  when  so  pos- 
sessed of  it  due  regard  to  sanitary  laws  required  that  he 
should  destroy  it.  There  can  consequently  be  nothing 
unprofessional,  dishonorable,  or  immoral  in  putting  the 
foetus  into  the  furnace.    As  to  his  desire  to  conceal  its 


THE  RIGHT  TO  PRACTISE  MEDICINE.  55 

birth,  such  a  desire,  instead  of  being  reprehensible,  is 
quite  laudable  and  wholly  professional,  for  it  is  a  doctor's 
duty  to  preserve  secret  all  knowledge  which  comes  to  him 
in  a  professional  capacity. 

As  to  the  second  specification  in  the  complaint,  which 
charges  that  the  defendant  refused  to  disclose  the  name 
of  the  patient  because  she  desired  that  it  should  not  be 
made  public,  the  question  is  not  whether  the  defendant 
was  legally  justified  in  withholding  the  name,  but 
whether  he  acted  unprofessionally,  immorally,  and  dis- 
honorably in  so  doing.  In  view  of  the  fact  that  he  be- 
lieved it  to  be  his  duty  to  withhold  this  information,  until 
legally  compelled  to  give  it,  there  is  much  difficulty  in 
seeing  how  his  conduct  was  unprofessional,  'dishonorable, 
or  immoral. 

The  third  charge  in  the  complaint,  which  alleges 
that  the  defendant  refused  to  disclose  the  name  of  the 
mother  on  the  ground  that  she  had  left  the  State,  and 
without  her  presence  to  explain  her  condition  at  the  time 
of  the  miscarriage  his  answer  would  incriminate  him, 
presents  a  very  nice  question  for  consideration.  Were 
this  a  criminal  trial  such  a  statement  could  not  be  taken 
as  evidence  against  the  defendant,  but,  as  pointed  out 
by  Justice  Harwood,  in  his  dissenting  opinion,  there  is 
a  broad  field  of  human  action  between  moral  rectitude 
and  honorable  conduct  and  that  of  crime,  and,  while  such 
a  refusal  to  testify  could  not  be  used  as  evidence  of  crime. 


56     THE  LAW  IN  ITS  EELATIONS  TO  PHYSICIANS. 

it  indicates  that  he  seeks  to  avoid  the  light  of  investiga- 
tion, and  thereby  casts  dishonor  upon  himself. 

There  was,  however,  no  specific  charge  in  the  com- 
plaint of  acts  amounting  to  unprofessional,  dishonorable, 
or  immoral  conduct,  nor  was  any  evidence  introduced 
tending  to  show  such  conduct.  The  court  was  therefore 
of  the  opinion  that  the  conduct  of  the  defendant  in  re- 
fusing to  give  the  mother's  name  was  consistent  with 
that  of  an  innpcent  man  made  overcautious  by  fear, 
knowing  that  his  actions  were  liable  to  be  the  subject  of 
judicial  investigation,  and  that  in  the  absence  of  the 
mother  he  would  be  unable  to  show  his  innocence.* 

Effect  of  Former  Adjudication. — It  is  a  well-settled 
principle  of  law  that  a  trial  and  judgment  by  a  tribunal 
having  jurisdiction  is  a  bar  to  further  proceedings  upon 
the  facts  considered  in  the  former  trial;  a  court  would 
accordingly  hold  that  the  trial  and  acquittal  of  a  physi- 
cian by  the  State  board  of  health  upon  the  charge  of 
"  making  statements  and  promises  calculated  to  deceive 
and  defraud  the  public  "  would  be  a  bar  to  an  investi- 
gation by  the  same  body  for  making  "  claims  and  prom- 
ises which  are  false  and  fraudulent,"  where  the  evidence 
in  the  two  cases  is  identical,  f 

A  trial  and  acquittal  by  a  medical  society  is,  however, 
no  bar  to  an  investigation  under  the  statute  by  the  State 

*  State  vs.  Kellogg,  14  Mont.,  426 ;  36  Pac.  Rep.,  957. 
f  People  vs.  McCoy,  30  111.  App.,  272. 


THE  RiaHT   TO  PRACTISE  MEDICINE.  57 

board  of  health  for  the  purpose  of  revoking  the  physi- 
cian's license.  Nor  would'  an  acquittal  upon  an  indict- 
ment for  procuring  an  abortion  act  as  a  bar  to  a  similar 
investigation  by  the  board  of  health,  the  proceedings  of 
the  court  and  those  of  the  medical  board  being  entirely 
distinct  and  independent  and  having  different  objects 
and  results  in  view :  the  one  having  regard  to  the  general 
welfare  and  criminal  justice  of  the  State,  and  the  other 
simply  and  exclusively  to  the  respectability  and  charac- 
ter of  the  medical  profession,  and  the  consequences  con- 
nected with  or  necessarily  flowing  from  it.* 

Practice  in  revoking  License. — The  policy  of  the  law 
to  protect  the  physician  from  arbitrary  or  unjust  treat- 
ment by  the  examining  board  has  been  considered  in  con- 
nection with  their  refusal  to  grant  licenses;  the  same  pol- 
icy to  guard  against  injustice  is  manifested  in  cases  of 
revocation  of  license.  Where  the  examining  board  re- 
vokes the  license  of  a  physician  without  first  giving  him 
reasonable  notice  of  the  charge  against  him,  and  the  time 
and  place  of  the  trial  thereof,  the  revocation  will,  upon 
appeal,  be  declared  null  and  void,  and  the  physician  will 
be  protected  in  continuing  his  practice  while  the  appeal 
is  pending,  f 

Where  a  physician  is  tried  by  an  examining  board  and 

*  Re  Smith,  10  Wend  ,  449. 

f  State  vs.  Schultz,  11  Mont.,  429 ;  28  Pac,  Rep.,  643;  State  vs. 
Weyerhorst,  11  Mont.,  434 ;  28  Pac.  Rep.,  644. 


58     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

his  license  revoked,  and  he  takes  an  appeal  from  the 
judgment  of  the  board,  but  continues  to  practise  while 
the  appeal  is  pending,  and  is  during  that  time  convicted 
of  practising  without  a  license,  such  conviction  should  be 
reversed  if  his  appeal  results  in  a  reversal  of  the  order 
revoking  his  license.* 

Repeal  of  Statutes  restricting  Practice. — All  statutes 
restricting  the  practice  of  medicine  are  enforced  by  pen- 
alties prescribed  for  their  violation,  and  sometimes  by 
provisions  disabling  the  unqualified  physician  from  re- 
covering for  his  services.  It  now  remains  to  consider  the 
effect  of  a  repeal  of  such  statutes.  As  to  the  criminal 
feature  of  such  acts,  it  is  a  well-settled  point  of  law  that 
the  repeal  of  a  law  creating  a  criminal  offense  renders 
the  law  inoperative  as  to  offenses  committed  before  its 
repeal ;  if,  therefore,  a  prosecution  is  pending  for  the  un- 
lawful practice  of  medicine,  and  the  act  making  such 
practice  unlawful  is  repealed,  the  prosecution  must  im- 
mediately abate.  And  this  rule  holds  good  even  if  the  of- 
fender has  been  convicted  but  not  yet  sentenced. 

The  removal  of  the  inability  clause  imposed  to  pre- 
vent the  collection  of  fees  does  not  as  a  general  thing 
enable  one  to  collect  for  services  rendered  while  such  law 
was  in  force,  f 

*  State  vs.  Kellogg,  14  Mont.,  451,  36  Pac.  Rep.,  107Y. 
f  For  a  full  treatment  of  the  effect  of  such  repeal  upon  the  right  to 
collect  fees,  see  p.  181,  e(  seq. 


CHAPTER    II. 

CONTRACT    OF    PHYSICIAN    WITH    PATIENT. 

Contract  Defined  and  Classified. — A  contract  has 
been  defined  by  an  eminent  law  writer  of  the  eighteenth 
century  as  "  an  agreement  upon  sufficient  consideration 
to  do  or  not  to  do  a  particular  thing."  *  This  agreement 
may  be  express  or  implied.  Where  the  particulars  of  the 
agreement  are  averred  and  mutually  agreed  upon,  the 
contract  is  said  to  be  an  express  contract ;  but  where 
no  particular  terms  are  set  forth,  the  law  will  take  into 
consideration  the  relations  of  the  parties,  and  will,  by 
implication,  create  for  them  such  an  agreement  as  rea- 
son and  justice  would  dictate.  The  contract  is  then 
said  to  be  an  implied  contract.  Such  contracts  may 
exist  without  our  knowledge  or  volition,  and,  as  a  mat- 
ter of  fact,  do  arise  from  nearly  every  transaction  into 
which  we  enter,  thus  constituting  much  the  greater  num- 
ber of  contracts  by  which  we  are  bound. 

Express  contracts  are  either  written  or  verbal.  Writ- 
ten contracts  are,  as  the  name  implies,  reduced  to  writ- 

*  Blackstone. 
5  59 


60     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ing  and  signed  by  the  parties  to  be  bound;  while  oral 
contracts  are  formulated  only  by  word  of  mouth,  and 
may  be  made  either  in  the  presence  of  witnesses  or  when 
the  contracting  parties  only  are  present.  In  the  absence 
of  statutes  which  provide  that  certain  contracts  must 
be  in  writing,  an  oral  contract  is  in  all  respects  as  bind- 
ing as  a  written  contract,  the  only  advantage  of  the 
latter  being  the  much  greater  ease  and  certainty  with 
which  the  exact  agreement  is  proved. 

It  will  be  readily  understood  from  the  preceding  that 
whenever  a  physician  or  surgeon  undertakes  the  treat- 
ment of  ^  patient  certain  contracts  are  created  by  the 
law  founded  upon  the  relation  of  the  parties.  These 
contracts  will  be  taken  up  and  considered  in  the  order  in 
which  they  naturally  follow. 

Contract  implied  from  Exercise  of  Professional 
Duties. — By  merely  undertaking  the  treatment  of  a  pa- 
tient the  physician  impliedly  contracts  with  that  pa- 
tient that  he  has  such  skill,  science,  and  information  as 
will  enable  him  properly  and  judiciously  to  perform  the 
duties  of  his  profession.*  This  is  a  contract  which  the 
law  creates  irrespective  of  any  statutes  prescribing  quali- 
fications for  the  practice  of  medicine,  and  one  which  was 
implied  at  common  law  before  statutes  existed  upon  the 
subject.     The  exact  degree  of  this  skill  and  knowledge 

*  Wood  vs.  Clapp,  4  Sneed  (Tenn.),  65. 


CONTRACT  OF  PHYSICIAN  WITH  PATIENT.      61 

which  the  physician  is  required  to  possess  has  many 
times  been  the  subject  of  judicial  consideration.  It 
would  be  manifestly  unjust  to  the  physician  or  surgeon 
to  require  him  to  possess  the  highest  degree  of  knowl- 
edge or  skill,  while,  on  the  other  hand,  the  public  wel- 
fare requires  that  the  standard  be  kept  well  above  that 
of  the  tyro  or  quack.  The  courts  have  accordingly 
held  in  all  eases  submitted  to  them  that  he  is  by  this 
implied  contract  required  to  be  possessed  of  "proper," 
"  reasonable,"  "  ordinary  "  knowledge  and  skill.*  But 
whether  or  not  the  proper  degree  of  knowledge  and  skill 
is  brought  to  the  particular  ease  must  be  determined 
from  the  circumstances. 

Advanced  State  of  Medical  Science  to  be  considered. 
— It  is  a  well-settled  proposition  of  law  that  in  judging 
of  the  degree  of  knowledge  and  skill  in  any  given  case 
due  regard  must  be  had  to  the  advanced  state  of  the 
profession  at  the  time.f  If,  for  instance,  an  operation 
were  to  be  performed  upon  the  eye  of  a  person  whose 
physical  condition  was  such  as  to  render  it  unsafe  to 
put  him.  under  the  influence  of  general  angestheties,  it 
would  be  evidence  of  culpable  ignorance  and  lack  of 


*  Reber  vs.  Herring,  115  Pa.  St.,  599;  Barnes  vs.  Means,  82  111., 
379  ;  Gramm  vs.  Boener,  56  Ind.,  497;  O'Hara  vs.  Wells,  14  Neb.,  40.S  ; 
Vanhooser  vs.  Berghoff,  90  Mo.  487,  8  West.,  205;  Quinn  vs.  Donovan, 
85  111.,  194;  Peek  vs.  Martin,  17  Ind.,  115. 

f  McCandles  vs.  McWha,  22  Pa.  St.,  261. 


62     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

skill  for  the  operator  to  proceed  by  using  other  than 
local  anaesthetics;  whereas  about  twenty  years  ago  rec- 
ognized authorities  on  the  subject  laid  down  the  rule  that 
chloroform  should  alwa3rs  be  administered.* 

Opportunities  of  Location  to  be  considered. — It  will 
also  be  manifest  that  the  opportunities  and  location  of 
the  physician,  and  more  particularly  the  surgeon,  are  a 
very  important  factor  in  determining  the  degree  of 
skill  and  proficiency  which  he  should  be  reasonably  ex- 
pected to  attain.  In  the  larger  cities  the  physician  and 
surgeon  has  the  opportunity  of  attending  the  hospitals 
and  clinics,  of  witnessing  and  taking  part  in  the  most 
difficult  and  complicated  operations,  and  of  attending 
lectures  and  consultations  whereby  he  is  kept  in  con- 
stant touch  with  the  ablest  and  most  advanced  of  his 
profession;  whereas  in  the  small  towns  and  country 
districts  the  physician  and  surgeon  has  fewer  opportu- 
nities of  observation  and  practice,  especially  in  the  line 
of  surgical  work,  and  can  not  reasonably  be  held  to  pos- 
sess so  high  qualifications  as  his  more  favored  profes- 
sional brother. 

The  law  takes  this  condition  into  consideration  in 
determining  the  degree  of  skill  and  knowledge  which  a 
physician  impliedly  contracts  to  possess,  and  accordingly 
requires  that  he  have  the  average  skill  and  ability  ordi- 

*  Wells,  Treatise  on  the  Eye,  ed.  of  1880. 


CONTRACT  OP  PHYSICIAN  WITH  PATIENT.      63 

narily  possessed  by  men  of  his  profession  in  similar  lo- 
calities* 

Test  applied  to  all  acting  as  Physicians.— This  test 
of  professional  knowledge  and  skill  is  not  applied  to  the 
regular  qualified  practitioner  alone,  but  to  any  person 
who  holds  himself  out  as  a  healer  of  diseases,  and  who 
accepts  employment  as  such.f    Should,  for  example,  one 
represent  himself  as  qualified  to  treat  and  operate  upon 
patients,  who  was  ignorant  of  the  most  rudimentary 
principles  of  medicine  and  surgery,  the  law  would  ex- 
tend to  him  no  indulgence  because  of  his  unfortunate 
lack  of  scientific  training,  but  in  case  deleterious  results 
attended  his  treatment  the  same  test  would  be  applied 
in  his  case  as  in  the  case  of  the  regularly  qualified  physi- 
cian and  surgeon  practising  in  the  same  locality  and  at 
the  same  time— that  is,  he  would  be  required  to  exercise 
at  least  the  ordinary  skill  and  ability  possessed  by  physi- 
cians and  surgeons  in  similar  localities.    Failing  in  this, 
he  would  be  held  to  respond  in  damages  to  the  extent 
of  the  injury  suffered  by  reason  of  his  incompetency. 

Contracts  to  Use  Care  and  Diligence.— The  physi- 
cian and  surgeon  also  impliedly  contracts  that  he  will 
use  reasonable  and  ordinary  care  and  diligence  in  the 


*  Whitsell  vs.  Hill,  101  la.,  629,  70  N.  W.  Rep.,  150,  81  L  H  A 
830;  Pelky  vs.  Palmer  (Mich.),  3  Det.  L.  N,   198;  Small  vs.  Howard' 
128  Mass.,  131.  ' 

f  Nelson  vs.  Harrington,  72  Wis.,  591. 


e4    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

exercise  of  his  skill  and  the  application  of  his  knowl- 
edge to  accomplish  the  purpose  for  which  he  is  em- 
ployed.* It  is  patent  that  a  physician  and  surgeon  may 
he  possessed  of  a  very  superior  degree  of  knowledge  and 
skill  and  yet  fail  in  the  successful  treatment  of  a  case 
hy  not  using  the  proper  care  in  applying  his  knowledge 
or  exercising  his  skill.  For  example,  a  physician  of 
superior  learning  and  skill  might  in  the  hasty  or  indif- 
ferent examination  of  a  patient  fail  to  observe  symptoms 
characteristic  of  the  disease  from  which  the  patient  is 
suffering,  and  treat  him  for  a  different  ailment  with 
disastrous  results,  while  a  physician  with  less  skill  and 
learning  could  hy  a  more  careful  examination  of  the 
patient  detect  the  true  condition,  and  by  applying  the 
generally  recognized  remedies  effect  a  cure. 

To  determine  what  is  ordinary  care  and  diligence 
no  absolute  rule  can  be  prescribed.  Justice  Story,  in 
referring  to  the  impossibility  of  a  fixed  standard  or  test, 
said :  "  Different  things  may  require  very  different  care. 
The  care  required  to  build  a  common  doorway  is  quite 
different  from  that  required  to  raise  a  marble  pillar, 
but  both  come  under  the  description,  ordinary  care."  f 
And  so  in  the  treatment  of  patients,  that  which  in  one 
case  might  be  ordinary  care  would  perhaps  in  another 


*  Carpenter  vs.  Blake,  50  N.  Y.,  696. 
f  Storj  on  Bailments,  §  429. 


CONTRACT  OF   PHYSICIAN  WITH   PATIENT.      65 

be  gross  negligence.  The  question  is  peculiarly  one  of 
fact,  and  can  only  be  determined  by  taking  into  consid- 
eration the  condition  of  the  patient  in  the  particular 
case,  together  with  all  of  the  attendant  circumstances. 
If,  after  such  an  examination,  it  is  found  that  the  care 
and  diligence  exercised  are  those  which  an  ordinarily 
careful  physician,  practising  in  a  similar  locality,  would 
have  exercised  in  a  like  case,  then  it  is  fair  to  conclude 
that  the  legal  requirement  of  ordinary  care  and  dili- 
gence has  been  fulfilled. 

Degree  of  Care  not  Necessarily  Proportionate  to 
Character  of  Injury  treated. — It  must  not  be  inferred 
from  the  foregoing  description  of  ordinary  care  and  dili- 
gence that  the  degree  of  care  and  diligence  or  care  and 
skill  necessary  to  be  exercised  in  a  particular  case  must 
be  proportionate  to  the  severity  of  that  case.  Such  a  doc- 
trine has  been  urged  but  has  been  very  wisely  rejected  by 
the  courts.*  If  such  a  rule  were  adopted  the  conclusion 
would  naturally  and  logically  follow  that  a  physician 
and  surgeon  is  legally  required  to  exercise  care  and  skill 
adequate  to  the  severity  of  all  cases  which  he  under- 
takes. Such  a  test  is  manifestly  absurd  and  beyond  the 
possibility  of  human  acquirements. 

Refusal  of  Proffered  Assistance  does  not  Alter  im- 
plied Contract. — The  fact  that  a  physician  or  surgeon 

*  Utley  vs.  Barnes,  70  111.,  162. 


66     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

refuses  to  accept  the  proffered  assistance  of  other  medi- 
cal men  does  not  increase  his  liability  or  responsibility, 
but  simply  amounts  to  an  implied  declaration  that  he 
possesses  the  ability  which  the  law  requires  of  him.* 

Physician's  Contract  unaltered  where  Services  are 
Gratuitous. — Nor  does  the  fact  that  a  physician  makes 
no  charge  and  receives  no  compensation  for  treating  a 
particular  case  alter  In  any  degree  the  amount  of  knowl- 
edge, care,  and  skill  which  it  is  incumbent  upon  him  to 
have  and  exercise,  f  In  instructing  a  jury  upon  this 
question.  Justice  Pryor  stated  the  law,  together  with 
the  reason  upon  which  it  is  based,  so  fully  and  clearly 
that  we  can  do  no  better  than  to  use  his  words :  "  It  ap- 
pears that  the  plaintiff  was  a  charity  patient;  that  the 
defendant  was  treating  her  gratuitously.  But  I  charge 
you  that  this  fact  in  no  way  qualifies  the  liability  of 
the  defendant.  Whether  the  patient  be  a  pauper  or  a 
millionaire,  whether  he  be  treated  gratuitously  or  for 
reward,  the  physician  owes  him  precisely  the  same  meas- 
ure of  duty  and  the  same  degree  of  skill  and  care.  He 
may  decline  to  respond  to  the  call  of  a  patient  unable 
to  compensate  him;  but  if  he  undertake  the  treatment 
of  such  a  patient  he  can  not  defeat  a  suit  for  malprac- 
tice nor  mitigate  a  recovery  against  him  upon  the  prin- 


*  Potter  vs.  Warner,  91  Pa.  St.,  .S62. 
f  Du  Bois  vs.  Decker,  130  N.  Y  ,  325. 


CONTRACT  OF   PHYSICIAN  WITH   PATIENT.      67 

eiple  that  the  skill  and  care  required  of  a  physician  are 
proportioned  to  his  expectation  of  pecuniary  recom- 
pense. Such  a  rule  would  be  of  the  most  mischievous 
consequence,  would  make  the  health  and  life  of  the 
indigent  the  sport  of  reckless  experiment  and  cruel  in- 
difference." * 

This  rule  must,  however,  be  understood  with  the 
qualification  that  a  party  who  undertakes  the  gratuitous 
treatment  of  another  incurs  no  liability  unless  he  pro- 
fesses to  be  a  physician  and  undertakes  the  treatment  as 
such.  For  if  he  merely  gives  his  advice  or  assistance 
as  a  friend  or  neighbor  he  incurs  no  professional  respon- 
sibility, f  Where,  for  example,  one  not  a  physician,  em- 
ployed in  the  capacity  of  a  midwife,  attempted  to  treat 
the  infant's  eyes,  and  by  reason  of  the  inefficient  reme- 
dies used  the  child  became  blind,  the  law  would  not  hold 
the  midwife  as  contracting  to  possess  the  same  skill 
and  learning  as  it  would  a  regular  physician  who  had 
gratuitously  undertaken  the  same  case.  J 

Dentist's  Contract  implies  Knowledge,  Skill,  and 
Care. — It  may  be  observed  in  passing  that  a  dentist 
implies  by  the  exercise  of  the  duties  of  his  profession 
that  he  is  possessed  of  the  same  amount  of  knowledge 
and  skill  in  his  profession,  and  will  exercise  the  same 

*  Becker  vs.  JaninskL,  27  Abb.  N.  C,  45. 
f  McNevins  vs.  Lowe,  40  111.,  209. 
X  Higgins  vs.  McCabe,  126  Mas?.,  13. 


68     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

degree  of  care  and  diligence  in  their  application,  as  that 
impliedly  contracted  for  by  the  physician  in  the  medi- 
cal profession.* 

Contracts  to  Use  Best  Judgment. — In  addition  to 
the  contract  of  the  physician  implying  that  he  is  pos- 
sessed of  learning  and  skill  and  will  exercise  reasonable 
care  and  diligence  in  the  treatment  of  his  patients,  it 
also  implies  that  in  all  cases  of  doubt  he  will  use  his 
best  judgment.  The  contract  is  not  that  his  Judgment 
will  be  infallible,  but  simply  that  it  shall  be  a  reason- 
ably good  judgment,  and  that  in  all  cases  of  doubt  he 
will  fully  exercise  it. 

In  the  abstract  this  rule  appears  to  mean  very  lit- 
tle, but  when  it  comes  to  the  particular  case;  when  the 
physician  finds  his  patient  suffering,  perhaps,  with  con- 
ditions symptomatic  of  several  diseases;  when  by  the 
exercise  of  his  best  knowledge  and  skill,  or,  for  that  mat- 
ter, the  best  knowledge  and  skill  of  the  most  enlightened 
of  his  profession,  he  can  not  determine  the  patient's 
exact  condition;  then  the  rule  has  a  real  meaning  to 
him.  In  i^uch  an  emergency  it  can  not  fail  to  be  a 
great  comfort  and  relief  to  know  that  an  intelligent  and 
careful  exercise  of  his  best  judgment  is  all  that  is  re- 
quired. 

If,  by  way  of  showing  a  further  application  of  the 

*  Simonds  vs.  Henry,  89  Me  ,  155. 


CONTRACT  OP  PHYSICIAN  WITH  PATIENT.      69 

rule,  a  surgeon  is  requested  by  a  patient  to  perform  a 
certain  operation  which,  in  the  opinion  of  the  surgeon, 
is  unwise,  unnecessary,  or  will  result  injuriously  to  the 
patient,  it  becomes  his  duty  to  give  the  patient  the  bene- 
fit of  his  judgment,  whether  it  is  asked  for  or  not*,  and 
if  the  surgeon  fails  to  advise  against  such  operation,  but 
acts  as  requested,  he  becomes  liable  to  the  patient  in 
damages  for  whatever  injuries  result  to  him  by  reason 
of  such  unnecessary  or  unwise  operation.  But,  if  the 
patient  is  of  mature  years  and  of  sound  mind,  and  upon 
being  advised  of  the  impropriety  of  such  operation  still 
insists  upon  its  performance,  the  surgeon  may  accept  the 
judgment  of  the  patient,  and,  if  the  operation  is  skill- 
fully and  properly  performed,  he  can  not  be  held  re- 
sponsible to  the  patient  because  its  result  is  injurious.* 

Contracts  to  Follow  Established  Modes  of  Practice. 
— The  physician  and  surgeon  also  impliedly  contracts 
with  his  patients  that  in  his  treatment  of  them  he  will 
comply  with  the  established  modes  of  practice. 

Such  a  method  or  system  of  treatment  must,  how- 
ever, be  upheld  by  a  consensus  of  opinion  among  mem- 
bers of  the  profession  before  the  practitioner  is  bound 
to  accept  and  follow  it  in  his  practice. f 

There  are  probably  many  cases  in  which  the  physi- 


*  Gramm  vs.  Boener,  56  Ind.,  497. 
•f  Jackson  vs.  Burnham,  20  Col.,  533. 


YO     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

cian  and  surgeon  possessing  the  skill  and  ability  required 
by  law  can  not  by  the  exercise  of  due  care  and  diligence 
determine  the  particular  disease  or  condition  from  which 
the  patient  is  suffering.  In  such  case,  if  he  uses  ordi- 
nary*care  and  skill,  and  by  the  exercise  of  his  best  judg- 
ment determines  upon  a  particular  disease,  and  then 
applies  the  recognized  remedy  or  mode  of  treatment  for 
that  disease,  he  is  fulfilling  his  contract  with  the  pa- 
tient and  doing  all  the  law  requires  of  him  in  the  par- 
ticulars considered.  But  if  he  experiments  with  some 
other  mode  of  treatment  he  does  so  at  his  peril.  Justice 
Goddard,  in  the  case  of  Jackson  vs.  Burnham,  said: 
"  In  other  words,  he  must  be  able  in  case  of  deleterious 
results  to  satisfy  the  jury  that  he  had  reason  for  the 
faith  that  was  in  him,  and  justify  his  experiment  by 
some  reasonable  theory."  * 

Duty  to  Instruct  Patient  and  Nurse. — It  is  also  in- 
cumbent upon  the  physician  and  surgeon  to  give  all 
reasonable  and  necessary  instructions  for  the  proper 
treatment  and  care  of  the  particular  disease  or  injury 
for  which  he  is  treating  the  patient;  and  should  injury 
result  from  his  failure  to  exercise  this  precaution  he 
will  be  held  to  respond  in  damages,  f  This  obligation 
extends  not  only  to  giving  instructions  for  the  period 


*  Jackson  vs.  Burnham,  20  Col.,  533. 
f  Carpenter  vs.  Blake,  60  Barb.,  488. 


CONTRACT  OF  PHYSICIAN  WITH  PATIENT.      71 

during  which  the  physician  is  attending  the  patient,  but 
also  for  the  period  of  convalescence  immediately  follow- 
ing. Therefore  a  physician  should^,  upon  dismissing  his 
patients,  carefully  tell  them  what  to  avoid,  and  advise 
them  to  exercise  that  care  which  in  his  judgment  is 
best  calculated  to  restore  their  natural  health  and 
strength.* 

The  physician  should  not,  however,  be  held  to  an- 
ticipate and  advise  against  improbable  conduct  on  the 
part  of  the  patient.  Where,  for  instance,  a  patient  who 
is  under  the  care  of  a  physician  at  a  hospital  leaves  the 
hospital  without  informing  the  physician  of  his  intent 
so  to  do,  it  will  be  unjust  to  hold  the  physician  to  the 
duty  of  anticipating  the  patient's  departure  and  advis- 
ing him  to  remain,  f 

Does  not  Contract  to  Cure. — Without  a  special  con- 
tract to  that  effect  the  physician  and  surgeon  is  never 
considered  as  guaranteeing  that  he  will  effect  a  cure,  or 
even  benefit  his  patients. J  A  physician  may,  however, 
enter  into  such  a  contract  by  express  agreement  provid- 
ing that  he  shall  be  paid  only  in  case  he  effects  a  cure, 
and  such  a  contract,  when  entered  into,  will  be  binding 
though  no  definite  sum  is  named  as  the  compensation 

*  Beck  vs.  German  Klinik,  18  la.,  696,  1  L.  R.  A.,  568. 
f  Richards  vs.  Willard,  176  Pa.  St.,  181,  35  Atl.  Rep.,  114. 
X  Styles  vs.  Tyler,  64  Conn.,  432,  30  Atl.  Rep.,  166;  Leigliton  vs. 
Sargent,  21  N.  II.,  460 ;  Haire  vs.  Reese,  1  Phil.  (Pa.),  138. 


72     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

for  perl'orming  the  cure.*  When  no  specified  sum  is 
agreed  upon,  the  physician  will,  upon  performing  the 
cure,  be  entitled  to  a  reasonable  amount  for  such  serv- 
ices, to  be  determined  in  the  ordinary  manner. 

Continiiation  of  Attendance. — A  physician  may  by 
special  contract,  when  undertaking  the  treatment  of  a 
case,  limit  his  attendance  to  a  longer  or  shorter  period, 
or  may  at  any  time  during  the  treatment  of  the  case 
discontinue  his  attendance  by  first  giving  reasonable  no- 
tice of  his  intention  so  to  do ;  but  if  he  does  not  limit  his 
attendance  by  express  contract  or  give  such  reasonable 
notice  of  his  intention  to  discontinue  his  visits,  he  is 
bound  to  continue  his  visits  as  long  and  as  frequently  as 
the  requirements  of  the  case  may  demand,  and  he  is 
held  to  the  use  of  ordinary  care  and  skill  in  determining 
when  his  visits  may  be  safely  discontinued,  f 

Contagious  Disease. — It  is  the  duty  of  the  physician, 
and  he  impliedly  contracts,  to  protect  his  patients  in  all 
reasonable  ways  from  contagious  and  infectious  dis- 
eases. If  he  himself  has  such  a  disease,  and  with  knowl- 
edge of  his  condition  visits  his  patients  without  appris- 
ing them  of  the  fact,  and  thus  communicates  the  disease 


*  Mack  vs.  Kelly,  3  Ala.,  387. 

t  Ballou  vs.  Prescott,  64  Me.,  305 ;  Boom  vs.  Reed,  69  Hun,  426 ; 
Barbour  vs.  Martin,  62  Me.,  536 ;  Williams  vs.  Gilman,  Vl  Me.,  21 ; 
Dashiell  vs.  Griffith,  84  Md.,  363;  Becker  vs.  Janinski,  27  Abb. 
N.  C,  45. 


CONTRACT  OF  PHYSICIAN  WITH  PATIENT.      73 

to  them,  he  is  clearly  guilty  of  a  breach  of  duty. 
Moreover,  it  is  his  duty,  in  passing  from  patients  who 
are  afflicted  with  an  infectious  and  dangerous  disease  to 
others  who  are  not  so  affected,  to  take  such  precautions 
as  experience  may  have  shown  to  be  necessary  to  prevent 
the  communication  of  infection,  and  he  will  be  held  re- 
sponsible for  his  failure  so  to  do.*  When  the  physician 
has  effected  a  cure  of  a  patient  afflicted  with  a  contagious 
or  infectious  disease,  it  becomes  his  duty  to  employ  all 
proper  and  necessary  means  to  disinfect  the  premises, 
and  the  law  will  protect  him  in  fulfilling  such  duty,  even 
though  it  may  involve  destruction  of  property,  f 

Contract  for  Medical  Treatment  Includes  Surgical 
Cases. — A  physician  who  enters  into  a  contract  with 
a  patient  or  with  a  third  party,  agreeing  to  give  "  med- 
ical "  treatment  or  to  "  perform  the  duties  of  a  physi- 
cian "  for  a  certain  period  of  time,  there  being  no  express 
understanding  regarding  surgical  cases,  or  nothing  to 
show  that  it  was  clearly  the  intent  that  surgical  cases 
should  be  excluded,  will  be  required  under  the  contract 
to  perform  surgical  operations  as  well  as  to  give  general 
medical  treatment  during  the  period.  J 

Privileged  Communications. — Last,  but  by  no  means 

*  Piper  va.  Menifee,  54  Am.  Dec.,  54*7,  12  B.  Monroe,  465. 
f  Seavey  vs.  Preble,  64  Me.,  120. 

X  Wetherell  vs.  Marion  Co.,  28  Iowa,  22 ;  Clinton  Co.  vs.  Ramsey, 
20  111.  App  ,  511. 


74     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

least  in  importance,  the  physician  contracts  with  his  pa- 
tients that  he  will  preserve  sacred  and  inviolable  all 
knowledge  which  comes  to  him  in  a  professional  way. 
So  sacred  is  this  knowledge  held  that  in  many  States  the 
physician  is  not  required  to  disclose  the  same  in  a  court 
of  justice  without  the  patient's  consent.  Knowledge  of 
this  sort  is  technically  known  in  the  law  as  privileged 
communications.  The  questions  arising  under  this 
privilege  being  many  and  varied,  they  are  made  the  sub- 
ject of  a  separate  chapter.* 

Importance  of  the  Foregoing  Principles. — By  way  of 
general  observation  it  may  be  said  that  the  foregoing 
contracts  and  obligations  implied  on  behalf  of  the  physi- 
cian form  nearly  the  whole  groundwork  of  the  law  reg- 
ulating the  subject  of  civil  malpractice,  and  if  the  physi- 
cian carefully  remembers  and  applies  these  rules  he  may 
hope  to  escape  being  required  to  face  an  injured  patient 
in  a  court  of  justice,  and  certainly  to  avoid  being 
mulcted  in  damages. 

*  See  chap,  ix^  Privileged  Communications. 


CHAPTEE    III. 

CONTRACT    OF   PATIENT    "WITH   PHYSICIAN. 

Contract  Implied  on  the  Part  of  the  Patient. — A  con- 
tract on  the  part  of  the  patient,  as  well  as  on  the  part 
of  the  physician,  is  created  by  law.  Such  contract,  like 
the  one  of  the  physician,  is  based  upon  and  grows  out 
of  the  relations  of  the  parties,  and  is  in  its  nature  com- 
plementary to  the  contract  of  the  physician. 

Contract  to  Pay  Physician's  Fees. — The  right  of  the 
physician  to  charge  and  recover  compensation  for  his 
services  is  very  seldom  the  subject  of  an  express  agree- 
ment between  the  physician  and  patient;  yet  the  physi- 
cian is  quite  as  secure  in  this  right  as  though  it  were 
fixed  by  formal  agreement,  it  having  been  long  settled 
that  where  a  person  avails  himself  of  the  benefit  of 
services  done  for  him,  even  though  without  his  positive 
authority  or  request,  the  law  supplies  the  formal  words 
of  contract  and  presumes  him  to  have  promised  an 
adequate  compensation.  It  may  therefore  be  laid  down 
as  a  general  rule  that  whenever  a  patient  employs  or 
receives  the  services  of  a  physician  he  is  bound  to  pay  a 
reasonable  compensation  for  such  services.* 

*  Crane  vs.  Baudoine,  65  Barb.,  260;  Peck  vs.  Martin,  17  Ind.,  115. 
6  '?5 


76     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

A  notable  exception  to  this  rule  formerly  existed 
under  the  law  of  England,  which  treated  the  services  of 
'the  physician  as  honorary  and  gratuitous,  and  did  not 
permit  him  to  recover  compensation  therefor  unless 
the  patient  was  bound  by  a  special  agreement  to  pay. 
The  services  of  the  surgeon  were  not  considered  of  the 
same  honorary  character,  and  he  was  therefore  able 
to  recover  his  fees  without  a  special  agreement.  Un- 
der the  medical  act  passed  in  the  twenty-first  and 
twenty-second  years  of  the  reign  of  Victoria,  physicians, 
if  duly  registered,  are  entitled  to  recover  reasonable 
compensation  for  their  services  without  any  express  con- 
tract providing  for  such  compensation,  thus  being 
placed  on  the  same  footing  in  this  regard  as  physicians 
in  the  United  States. 

Liable  for  Subsequent  Visits. — It  will  be  remem- 
bered that  a  physician  undertaking  the  treatment  of  a 
case  is  bound  to  continue  his  visits  as  long  as  the  condi- 
tion of  the  patient  requires  his  attention.  The  counter- 
part of  this  obligation  may  be  found  in  the  implied  con- 
tract which  the  law  creates  requiring  the  patient  to  pay 
the  physician  not  only  for  the  first  visit,  which  he  has 
expressly  requested,  but  for  all  further  visits  or  services 
which  the  physician  and  surgeon  makes  or  renders  by 
reason  of  the  necessities  of  the  case.* 

*  Dale  vs.  Donaldson  Lumber  Co.,  48  Ai'k.,  188. 


CONTRACT  OP   PATIENT  WITH   PHYSICIAN.      7^ 

Liable  for  Fee  of  Consultant. — The  patient  is  bound 
not  only  to  pay  the  attending  physician,  but  also  the 
physician  who  is  called  to  a  consultation,  and  this  has 
been  held  to  be  the  law  notwithstanding  there  is  an 
agreement  between  the  attending  physician  and  patient 
that  the  attending  physician  shall  pay  the  expenses  of 
such  consultation.* 

The  reason  for  this  rule  may  be  readily  seen.  It 
has  been  observed  that  where  a  party  knowingly  and 
without  objection  permits  another  to  perform  services 
for  him,  the  law  implies  a  promise  to  pay  what  the 
services  are  reasonably  worth.  Consequently,  when  a 
physician  is  called  to  a  consultation,  even  though  it  be 
by  the  attending  physician,  it  is  fair  for  him  to  presume 
that  the  consultation  is  for  the  benefit  of  the  patient, 
and  to  rely  upon  the  promise  of  payment  which  the  law 
makes  for  the  patient.  The  agreement  of  the  attend- 
ing physician  to  pay  the  consultant  is  unusual  and 
exceptional,  and  being  contrary  to  the  ordinary  presump- 
tion of  law  the  consultant  will  not  be  bound  unless  he 
has  notice  of  such  arrangement  before  or  at  the  time  of 
rendering  the  services. 

It  is  doubted,  however,  whether  a  patient  is  bound 
by  an  implied  contract  to  pay  for  medical  services  of  a 
physician  called  in  by  her  attending  physician  for  the 
mere  purpose  of  convincing  her  that  he  is  doing  all  that 

*  Shelton  vs.  Johnson,  40  Iowa,  84 ;  Garrey  vs.  Stadler,  67  Wis.,  512. 


78     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

can  be  accomplished  for  her,  where  such  physician,  in 
fact,  rendered  no  services  for  her  and  was  not  called  in 
at  her  request.* 

It  is  pertinent  to  state  at  this  point  that  should  the 
patient  be  required  to  pay  the  consulting  physician  after 
the  attending  physician  has  agreed  to  defray  this  ex- 
pense, the  patient  may  recover  the  amount  so  paid  by 
him  from  the  attending  physician,  or  he  may  treat  it 
as  a  counterclaim  and  deduct  the  amount  from  fees 
earned  by  the  attending  physician.    ■ 

Contract  of  Obedience. — It  is  a  well-settled  proposi- 
tion of  law  that  it  is  the  duty  of  the  patient  upon  plac- 
ing himself  in  the  hands  of  a  physician  to  follow  strictly 
all  instructions  and  conform  to  the  necessary  prescrip- 
tions and  treatment,  if  they  are  such  as  a  physician  or 
surgeon  of  ordinary  skill  and  care  would  adopt  or  sanc- 
tion. As  a  disregard  of  this  obligation  results  to  the 
injury  of  the  patient  only,  it  does  not  give  the  physician 
a  cause  of  action  against  the  patient;  yet  if  the  patient 
endeavors  to  recover  damages  from  the  physician  for 
injuries  which  he  claims  result  from  unskilled  treat- 
ment, the  physician  and  surgeon  may,  by  showing  that 
the  patient  is  guilty  of  such  negligence  or  disobedience, 
prevent  his  recovery,  f 

*  Schrader  vs.  Hoover,  SI  la.,  654,  54  N.  W.,  463. 
f  Haire  vs.  Reese,  1  Phila.  (Pa.),  138 ;  Davis  vs.  Spicer,  2V  Mo.  App., 
279 ;  Jones  vs.  Angell,  95  Ind.,  376. 


CONTRACT  OF  PATIENT  WITH   PHYSICIAN.      Y9 

Sunday  Contracts. — In  the  absence  of  statutes  to 
the  contrary,  any  contract  executed  on  Sunday  is  as 
valid  and  binding  as  though  executed  on  a  week  day. 
Each  State  has,  however,  passed  laws  requiring  the  ob- 
servance of  Sunday.  In  all  States  labor  is  prohibited, 
and  in  most  States  the  transaction  of  business  is  made 
unlawful  upon  the  Sabbath.  In  those  States  which  go 
so  far  as  to  prohibit  labor  onl}^,  one  is  free  to  enter  into 
contracts  and  to  execute  promissory  notes  and  other  in- 
struments which  are  perfectly  valid ;  but  in  those  States 
which  prohibit  the  transaction  of  business,  any  instru- 
ment or  contract  made  or  entered  into  on  Sunday  is  in- 
valid and  can  not  be  enforced  even  though  one  of  the 
parties  may  have  performed  his  part  of  such  contract. 
If,  for  instance,  in  a  State  prohibiting  the  transaction 
of  business  on  the  Sabbath  goods  are  sold  and  delivered 
on  Sunday,  or  services  are  rendered  on  that  day,  the 
party  receiving  the  goods  or  enjoying  the  benefit  of  the 
services  is  under  no  obligation  to  pay  for  them. 

These  statutes,  however,  unanimously  except  from 
their  operation  contracts  made  to  carry  out  works  of 
necessity  or  charity,  and  the  courts  have  held,  whenever 
the  question  has  been  raised,  that  the  contract  of  the 
physician  falls  within  this  exception,  and  that  it  is  bind- 
ing in  all  respects  both  upon  him  and  upon  the  patient.* 

*  Smith   vs.  Watson,   14   Vt.,   332 ;   Aldrich   vs.  Blackstone,    128 
Mass.,  148. 


CHAPTER   IV. 

EIGHTS   AND    LIABILITIES    OF   THIRD   PARTIES. 

Who  are  Third  Parties. — The  term  third  party,  as 
used  in  this  article,  means  any  interested  person  other 
than  the  patient.  While  the  physician  may  consider 
that  he  is  dealing  with  the  patient  individually,  it  hap- 
pens more  frequently  than  otherwise  that  third  parties 
are  interested,  either  having  rights  of  which  the  physi- 
cian should  be  informed  and  prepared  to  respect,  or  in- 
curring liabilities  which  if  understood  and  taken  advan- 
tage of  may  conduce  to  the  physician's  financial  welfare. 

Liability  of  Third  Parties  for  Fees. — In  treating 
this  subject,  attention  will  be  first  given  to  the  ques- 
tion of  when  third  parties  become  liable  to  the  physician 
for  the  payment  of  his  fees. 

Liability  of  Parent. — That  the  parent  is  bound  to 
provide  for  the  maintenance  of  his  minor  children  is  a 
rule  of  natural  law.  But  the  question  to  what  extent 
the  parent  becomes  liable  for  necessaries  furnished  to 
his  minor  child  is  one  that  is  sometimes  perplexing. 
When  necessaries  are  furnished,  either  in  the  shape  of 
goods  delivered  or  services  rendered,  with  the  knowledge 

80 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.   81 

and  consent  of  the  parent,  there  can  be  no  question  about 
his  liability  to  pay.  But  it  is  laid  down  as  a  general 
rule  that  no  action  can  be  maintained  against  the  parent 
for  goods  purchased  on  credit  by  his  minor  child,  even 
though  they  may  be  necessary,  unless  the  father  has  ex- 
pressly or  impliedly  authorized  the  credit. 

The  authority  of  an  infant  to  bind  his  parent  for 
necessaries,  such  as  food,  clothing,  and  medical  attend- 
ance, will  be  inferred  from  very  slight  evidence.  The 
following  cases  will  illustrate  the  principle : 

Illustrations. — If  a  child  who  is  away  from  home 
attending  school  is  taken  sick,  the  parent  will  be  liable 
to  the  physician  for  the  amount  of  his  bill,  authority  to 
bind  the  father  being  inferred  from  the  nature  of  the 
case.*  A  girl  of  fourteen,  with  the  consent  of  her 
father,  went  to  live  at  a  place  thirty  miles  distant, 
where  for  three  years  she  contracted  for,  earned,  and 
controlled  her  own  wages,  her  father  neither  furnishing 
nor  agreeing  to  furnish  her  with  necessaries ;  while  these 
circumstances  showed  that  she  was  emancipated  from 
the  duty  of  service  to  the  father  for  the  time  she  was 
so  employed,  there  was  no  such  complete  emancipation 
as  to  release  him  from  liability  to  a  physician  who  at- 
tended her  in  sickness,  though  the  father  had  no  knowl- 
edge of  such  attention.! 

*  Parker  vs.  Tillinghast,  19  Abb.  N.  C,  190. 
f  Porter  vs.  Powell,  79  Iowa,  161. 


82     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

And  so,  where  a  child  leaves  home  through  fear  of 
violence,  he  carries  implied  authority  to  bind  his  father 
for  necessaries.*  But  if  the  child,  having  no  reason  to 
fear  violence  or  mistreatment,  leaves  his  father's  home 
without  the  father's  consent,  for  the  purpose  of  seeking 
his  fortune  in  the  world,  or  to  avoid  the  discipline  and 
restraint  so  necessary  for  due  regulation  of  families,  he 
carries  no  credit,  and  the  father  is  under  no  obligation 
to  pay  his  necessary  bills. f 

It  will  be  observed  that  the  case  above  cited,  of  the 
girl  who  left  her  father's  house  and  had  been  employed 
for  three  years,  is  not  in  conflict  with  this  proposition, 
for  in  that  case  the  father  had  given  his  consent  to 
the  employment.  If,  however,  the  child,  after  leaving 
home  against  his  father's  will,  being  taken  sick,  returns 
home  and  is  received  by  the  father,  he  becomes  liable  to 
the  physician  for  medical  services  rendered  to  the  child 
at  his  house  and  with  his  knoAvledge  and  assent.;}; 

It  seems  quite  well  settled  by  a  number  of  recent 
decisions  that  the  parent  is  bound  to  pay  for  necessaries 

*  Stanton  vs.  Willson,  3  Day  (Conn.),  3*7 ;  Pidgin  w.  Cram,  8  N.  H., 
350;  Kimball  vs.  Keyes,  11  Wend.  (X.  Y.),  34;  Walker  vs.  Laighton, 
31  N.  H.,  Ill ;  Van  Valkinburgh  vs.  Watson,  13  Johns  (N.  Y.),  480. 

f  Weeks  vs.  Merrow,  40  Me.,  151 ;  Owen  vs.  White,  5  Port.  (Ala.), 
435  ;  Hunt  vs.  Thompson,  4  111.,  1*79  ;  Raymond  vs.  Loyl,  10  Barb.,  483 ; 
Walker  I's.  Laighton,  31  N.  H.,  HI;  Reynolds  vs.  Sweetser,  15  Gray 
(Mass.),  78. 

^  Deane  vs.  Annis,  14  Me.,  26. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.   83 

furnished  to  his  minor  child  who  is  living  apart  from 
him  with  his  consent  when  the  parent  refuses  to  fur- 
nish them.* 

Upon  the  death  of  the  father,  the  mother  becomes 
the  head  of  the  family,  but  it  seems  she  is  not  bound  by 
the  same  obligations  of  maintenance  and  support  as 
those  which  formerly  bound  the  father.  Under  the 
rule  most  commonly  in  force  the  child,  if  he  has  a  sepa- 
rate estate,  will  be  required  to  pay  for  his  own  medical 
attendance  from  his  estate ;  and  only  in  the  absence  of 
such  an  estate  will  the  mother  be  subjected  to  that 
burden. 

In  case  of  separation  or  divorce  it  is  of  practical 
value  to  determine  whether  the  father  or  mother  is  liable 
for  necessaries  for  the  child.  While  there  are  general 
principles  of  law  governing  the  liability,  it  will  be  im- 
possible to  state  generally  where  it  rests,  an  examina- 
tion into  the  circumstances  of  the  particular  case  being 
always  necessary.  In  case  of  voluntary  separation  of 
the  parents  the  father  is  prima  facie  liable  for  the  sup- 
port of  the  children,  though  they  may  be  in  the  custody 
of  the  mother;  but  if  the  mother,  without  just  cause, 
leaves  the  father  and  takes  the  children  with  her,  no 
authority  is  implied  to  bind  him  for  their  support  or 


*  Dewane  vs.  Hansow,  56  111.  App.,  575 ;  McMillen  vs.  Lee,  78  111., 
443  ;  Porter  vs.  Powell,  79  Iowa,  151. 


84:     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

necessary  expenses,  her  possession  of  the  children  being 
unlawful.*  But  should  the  court,  by  a  decree  or  order, 
give  her  the  custody  of  the  children,  then  her  possession 
of  them  becomes  rightful  and  the  father  becomes  liable 
for  their  support,  f 

In  Ehode  Island  it  has  been  held  that  where  the 
mother  wrongfully  left  the  father's  home,  taking  a  child, 
the  father,  by  suffering  the  child  to  live  separate 
from  him  with  the  mother,  constituted  her  his  agent 
to  contract  for  the  child's  necessities.  J  When  a  divorce 
is  granted,  the  custody  of  the  children  is  usually  regu- 
lated by  decree.  If  the  divorce  is  obtained  by  the  wife 
and  the  husband  is  shown  to  be  an  improper  person  to 
care  for  and  educate  the  child,  the  court  will  decree  the 
custody  of  the  child  to  the  mother.  Whether  or  not  the 
father  is  liable  for  the  support  of  the  child  under  such 
circumstances  can  not  be  stated  generalh^,  for  different 
rules  are  applied  in  different  States,  and  in  some  States 
the  circumstances  of  the  particular  case  will  govern  the 
matter.  In  such  a  case  the  only  safe  rule  for  the  physi- 
cian to  be  guided  by  is  to  have  an  express  contract  for 
payment  with  some  responsible  party  before  the  services 
are  rendered. 

When  tlie  child  becomes  of  full  age  a  different  rule 

*  Hyde  vs.  Leisenring,  107  Mich.,  490. 
t  Shields  vs  O'Reilly,  68  Conn.,  256. 
X  Gill  vs.  Read,  5  R.  I.,  343. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.   85 

of  liability  attaches ;  the  parent  then  ceases  to  be  under 
obligation  to  furnish  him  with  necessities,  even  though 
he  remains  at  his  father's  home.  It  is  true  the  father 
may  become  liable  for  medical  attendance  upon  his 
adult  child  by  an  implied  agreement  to  pay,  but  it  seems 
the  law  places  the  father  of  an  adult  child  in  the  same 
category  as  a  stranger,  and  will  not  find  him  liable  on 
any  less  or  weaker  evidence  than  that  required  to  fix 
such  liability  upon  a  mere  friend  or  acquaintance.  So 
a  tequest  by  a  father  to  a  physician  to  attend  his  son, 
of  full  age,  and  at  his  house,  raises  no  implied  prom- 
ise on  the  part  of  the  father  to  pay  for  such  services.* 
A  married  daughter  of  more  than  twenty-one  years  of 
age  came  with  her  husband  and  child  to  her  father's 
home ;  she  being  sick,  her  husband  requested  a  physician, 
to  whom  he  was  unknown,  to  call  at  the  house  of  the 
father,  saying  the  father  wished  him  to  attend  his 
daughter;  the  physician  called,  usually  met  the  father, 
who  expressed  great  interest  in  his  daughter's  welfare, 
expressed  a  wish  to  be  present  at  a  consultation  which 
was  held,  and  never  in  any  way  disclaimed  his  liability. 
The  court  said :  "  It  is  true  that  a  person  may  not  avail 
himself  of  the  benefit  of  services  done  for  him  without 
coming  into  an  obligation  to  reward  them  with  a  reason- 
able recompense.     But  he  can  not  be  said,  in  the  mean- 

*  Boyd  vs.  SappingtoD,  4  Watts,  247. 


86     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ing  of  the  law,  to  avail  himself  of  services  as  so  done 
when  they  are  not  for  his  individual  benefit,  nor  for  that 
of  any  one  for  whom  he  is  bound  to  furnish  them.  The 
acquiescence  of  one  in  the  rendering  of  service  or  benefit 
to  another,  not  entitled  to  call  upon  him  therefor,  is  not 
equivalent  to  an  acknowledgment  that  it  is  rendered 
at  his  request.  So  far  as  the  legal  responsibility  was 
concerned,  the  defendant,  though  the  father  of  the  pa- 
tient, was  a  stranger  to  her  and  her  necessities.  He 
could  neither  require  of  her,  nor  be  required  upon  by 
her."  * 

Liability  of  Husband. — The  liability  of  the  husband 
for  necessities  furnished  to  the  wife  is  much  more  cer- 
tain than  that  of  the  parent  for  necessities  furnished  to 
the  child;  in  the  latter  case  there  is  a  question  of  au- 
thority on  the  part  of  the  child  to  bind  the  parent,  but 
in  the  former  case,  if  the  husband  and  wife  are  not  sepa- 
rated by  reason  of  the  improper  conduct  of  the  wife, 
or  by  reason  of  her  leaving  him  against  his  will,  almost 
the  only  question  that  can  be  raised  is  whether  the  goods 
furnished  or  services  rendered  were  necessary.  If  the 
husband  and  wife  are  living  apart  by  mutual  consent, 
and  the  husband  has  entered  into  a  contract  with  the 
wife  to  furnish  her  with  a  certain  amount  each  month 
for  her  support  and  maintenance  and  all  family  es- 

*  Crane  vs.  B.mdouine,  55  N.  Y.,  256. 


RIGHTS  AND  LIABILITIES   OF   THIRD   PARTIES.    87 

penses,  and  pays  such  amount,  he  will  still  be  liable  to 
a  physician  who  renders  services  to  her  at  her  request, 
the  physician  not  knowing  they  are  living  apart  and 
that  the  husband  makes  her  a  fixed  monthly  payment  in 
lieu  of  supporting  her.* 

It  has  been  heretofore  observed  that  the  patient  is 
bound  to  pay  the  physician  not  only  for  the  first  visit 
which  is  made  at  his  request,  but  for  all  subsequent 
visits  which  the  nature  of  the  case  requires ;  and  so  the 
husband  who  employs  a  physician  to  attend  his  sick 
wife  is  liable  for  services  rendered  throughout  the  ill- 
ness. Should  the  wife  be  removed  to  her  father's  home 
during  her  illness,  without  the  husband's  knowledge  or 
consent,  he  will  still  be  bound  to  pay  the  physician 
whom  he  employed  before  such  removal  for  services  ren- 
dered to  the  wife  at  her  father's  home.f  If,  however, 
the  husband  notifies  the  physician  at  the  time  of  the  re- 
moval that  he  will  not  pay  for  services  subsequently 
rendered  to  her,  the  physician  can  not  collect  from  him 
without  showing  by  clear  and  satisfactory  evidence  that 
the  husband  was  guilty  of  gross  abuse,  neglect,  and  mis- 
conduct justif3dng  such  removal. 

A  physician  who  attends  a  woman,  supposing  her 
to  be  a  wife,  can  collect  for  such  services  from  the  man 


*  Lawrence  vs.  Brown,  91  la.,  342,  59  N.  W.,  256. 
\  Downing  vs.  O'Brien,  67  Barb.,  583. 


88     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

holding  himself  forth  as  her  husband,  even  though  they 
are  not  in  fact  married.*  But,  it  seems,  if  the  physician 
is  cognizant  of  the  fact  that  they  are  not  married,  he 
can  not  collect  from  the  supposititious  husband,  unless 
such  husband  employed  him  to  render  the  services, 
thus  becoming  liable  upon  a  direct  undertaking  to  pay. 
The  liability  of  the  husband  for  necessary  food, 
clothing,  and  medical  attendance  furnished  the  wife  in 
his  absence  does  not  include  the  services  of  a  clairvoyant 
who  does  not  profess  to  be  a  physician  or  to  have  any 
medical  skill  or  knowledge  of  diseases  or  their  remedies. 
The  court  in  passing  upon  this  question  said :  "  It  does 
not  appear  that  the  plaintiff  (clairvoyant)  professed  to 
be  a  physician  or  to  have  any  medical  skill  or  knowledge 
of  diseases  or  their  medical  remedies,  and  of  course  it 
does  not  appear  that  he  has  furnished  the  wife  with 
any  necessaries  within  the  rule  of  law  for  which  the  hus- 
band can  be  rightfully  charged.  The  law  does  not  rec- 
ognize the  dreams,  visions,  or  revelations  of  one  in  a 
mesmeric  sleep  as  necessary  for  a  wife,  for  which  the 
husband,  without  his  consent,  can  be  held  to  pay.  These 
are  fancy  articles,  which  those  who  have  money  of  their 
own  to  dispose  of  may  purchase,  if  they  think  proper, 
but  they  are  not  necessaries,  known  to  the  law,  for  which 
the  wife  can  pledge  the  credit  of  her  absent  husband."  f 

*  Gerlach  vs.  Turner,  89  Cal.,  44V,  26  Pac.  Rep.,  8V0. 
f  Furlong  vs.  Leary,  62  Mass.,  406. 


RIGHTS  AND   LIABILITIES  OF   THIRD   PARTIES.    89 

Liability  of  Master  for  Attendance  on  Servant. — It 

is  a  well-settled  doctrine  that  the  master  is  not  by  reason 
of  his  relation  to  the  servant  liable  for  medical  attend- 
ance upon  such  servant.*  If,  however,  a  physician  is 
called  by  a  master  to  attend  a  servant  in  his  employ, 
such  engagement  has  been  held  to  amount  to  a  direct 
undertaking  by  the  master  to  pay ;  but  if  he  is  called  by 
the  master's  wife,  even  with  an  express  agreement  that 
her  husband  will  pay,  the  husband  is  not  bound  unless 
it  can  be  shown  that  the  agreement  is  made  with  his 
knowledge  and  consent,  or  that  he  subsequently  ratified 
the  hiring.  The  reason  for  this  rule  may  be  readily 
perceived;  the  husband  is  never  bound  by  the  contracts 
of  his  wife  except  for  necessaries  furnished  to  her  or  to 
her  children;  therefore  a  contract  imposing  a  liability 
upon  him  for  medical  attendance  upon  a  servant,  which 
he  is  not  primarily  liable  to  pay,  is  beyond  the  scope  of 
her  authority.! 

Liability  of  Vessels  for  Attendance  upon  Seamen. — 
For  the  information  of  those  physicians  living  in  cities 
and  towns  located  on  the  oceans,  great  lakes,  or  other 
navigable  waters  of  the  United  States,  the  general  rule 
of  liability  of  vessels  for  the  care  and  medical  attend- 
ance upon  their  sick  and  disabled  seamen  is  given. 

It  is  a  well-established  rule  of  law  that  shipowners 

*  4  Waite's  Actions  and  Defenses,  400. 

f  Baker  vs.  Witten,  1  Okl.,  160,  30  Pac.  Rep.,  491. 


90     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

and  masters  are  bound  to  provide  suitable  care  and 
medical  treatment  for  seamen  who  become  disabled  by 
sickness  or  injuries  received  in  the  discharge  of  their 
duties,  and  a  physician  attending  such  seamen  may  hold 
the  vessel,  the  master,  or  the  owners  to  pay  for  his 
services.* 

The  extent  of  the  period  covered  by  this  liability  is 
the  subject  of  much  confiict;  some  cases  hold  that  the 
seaman  is  entitled  to  care  and  medical  treatment  until 
he  recovers,  while  others  restrict  the  right  to  the  period 
covered  by  the  voyage  for  which  the  seaman  is  engaged. 
It  seems  that  where  the  injury  or  sickness  is  the  result 
of  culpable  negligence  or  mistreatment  by  the  master 
or  officers  of  the  vessel  the  courts  have  held  the  liability 
to  extend  over  the  entire  period  of  sickness  or  disability ; 
whereas,  when  the  sickness  or  injury  could  not  be  im- 
puted to  such  cause,  they  have  considered  the  liability 
as  terminating  when  the  voyage  for  which  the  seaman 
was  engaged  was  completed  and  he  was  discharged.! 

This  is  a  question  upon  which  the  law  books  present 
a  great  amount  of  material — some  of  it  conflicting — 
but,  owing  to  the  comparatively  small  number  of  the 
profession  who  are  interested  in  its  discussion,  it  is  not 
thought  advisable  to  use  the  space  necessary  for  an  ex- 

*  Holt  vs.  Cummings,  102  Pa.  St.,  212,  48  Am.  Rep,,  199. 
t  The  Ben  Flint,  1  Abb.  U.  S.,  126 ;  The  J.  F.  Card,  43  Fed.  Rep., 
92  ;  contra  The  Lizzie  Frank,  31  Fed.  Rep.,  477. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.   91 

amination  of  particular  instances  of  the  application  of 
the  general  principles  laid  down. 

Statute  of  Frauds. — The  question  of  when  a  third 
party  not  in  the  relation  of  husband,  parent,  or  master 
is  liable  for  the  services  of  the  physician  is  often  a  very 
nice  one.  Section  four  of  the  English  Statute  of 
Frauds  provides,  among  other  things,  that  "no  action 
shall  be  brought  whereby  ...  to  charge  the  defendant 
upon  any  special  promise  to  answer  for  the  debt,  de- 
fault, or  miscarriage  of  another  person  .  .  .  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or 
some  memorandum  or  note  thereof,  shall  be  in  writing 
and  signed  by  the  party  to  be  charged  therewith." 

This  section  of  the  statute  has  been  re-enacted, 
with  certain  unimportant  modifications,  throughout  the 
United  States.* 

At  first  glance  it  would  seem  that  in  order  to  enforce 
the  liability  of  a  third  person  of  the  class  we  are  now 
considering,  his  contract  of  obligation  must  in  all  cases 
be  reduced  to  writing  and  signed.  This  statute  is,  how- 
ever, not  so  broad  in  its  application  as  it  at  first  ap- 
pears. As  a  matter  of  fact,  the  contract  or  agreement 
fixing  the  liability  of  the  third  party  is  more  frequently 
without  than  within  the  operation  of  this  statute. 


*  In  Pennsylvania  it  does  not  apply  to  any  contract  the  considera- 
tion of  which  is  less  than  twenty  dollars. 


92     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

In  order  to  bring  a  case  within  the  statute,  a  third 
person  who  is  in  no  way  liable  for  the  debt  or  default 
in  question  must  promise  to  pay  it  if  not  paid  by  the 
debtor.  If  the  promise  is  of  such  a  nature  as  to  act 
as  an  assignment  or  sale  of  the  security  for  the  debt, 
or  of  the  debt  itself  to  the  third  party,  it  does  not  come 
within  the  statute,  nor  if  the  third  party  assumes  to  be 
the  paymaster,  making  himself  directly  and  uncondi- 
tionally responsible  for  the  debt,  is  it  necessary  to  re- 
duce such  agreement  to  writing. 

It  will  be  observed  that  the  promise  to  pay  must,  to 
come  within  the  statute,  be  conditional :  thus,  if  a  third 
party  says  to  a  physician,  "  If  the  patient  does  not  pay 
you  I  will,"  the  promise  comes  within  the  statute,  and 
to  be  binding  must  be  reduced  to  writing.  But  if  the 
third  party  says,  "  Attend  such  a  patient  and  I  will 
pay  you,"  the  promise  does  not  come  within  the  statute, 
and  the  oral  promise  is  binding,*  for  in  such  a  case  the 
third  party  does  not  agree  to  answer  for  the  debt  of 
another,  but  by  his  contract  makes  the  debt  his  own. 

It  is  a  well-established  rule  of  law  that  all  valid  con- 
tracts must  be  based  upon  some  good  or  valuable  con- 
sideration. If,  therefore,  a  third  party  says  to  a  physi- 
cian, after  the  services  are  rendered  and  the  indebted- 


*  Buchanan  vs.  Sterling,  63  Ga.,  22Y;  Boston  vs.  Farr,  148  Pa.  St., 
220,  23  Atl.  Rep.,  901  ;  Thomas  vs.  Leavy,  62  111.  App.,  34, 


RIGHTS  AND  LIABILITIES   OP  THIRD   PARTIES.   93 

ness  is  incurred,  "  I  will  pay  the  bill  of "  such,  a 

promise  is  not  binding,  whether  written  or  verbal,  be- 
cause there  is  no  consideration  upon  which  to  found 
the  contract.  A  sufficient  consideration  need  not  be  one 
of  money.  When,  for  example,  the  promise  is  made  be- 
fore services  are  rendered,  the  consideration  for  assum- 
ing the  obligation  is  that  the  physician  will  render  such 
services;  or,  if  the  services  have  been  rendered,  and  a 
third  party  agrees  to  assume  the  indebtedness,  provided 
the  physician  will  forbear  from  bringing  a  suit  upon 
the  account,  or  will  dismiss  a  suit  already  brought,  such 
condition  will  be  a  sufficient  consideration  upon  which 
to  found  the  contract  of  liability.  A  physician  who  was 
attending  a  patient  was  approached  by  the  patient's  son 
with  the  following  statement:  "You  do  what  you  can 
for  father,  and  you  charge  this  bill  to  me,  and  what  you 
do  afterward,  and  I  will  leave  you  some  money  before 
I  leave  town."  This  was  a  direct  undertaking,  and 
therefore  not  required  to  be  in  writing;  but,  so  far 
as  it  related  to  the  fee  for  services  already  rendered, 
was  without  consideration  and  void,  although  good  and 
binding  for  services  rendered  after  the  date  of  the  prom- 
ise.* 

■But  if  a  physician  who  is  attending  a  patient  refuses 
to  continue  his  services  unless  guaranteed  that  he  will 

*  Chappell  vs.  Barkley,  90  Mich.,  35,  51  N.  W.,  351. 


94:     THE  LAW  m  ITS  RELATIONS  TO  PHYSICIANS. 

be  paid  for  both  past  and  future  services,  and  a  third 
party  undertakes  to  make  such  payment  upon  condition 
that  the  physician's  services  shall  be  continued,  the  con- 
tinuation of  the  services  will  be  a  sufficient  considera- 
tion upon  which  to  base  the  obligation. 

It  is  hoped  that  the  foregoing  explanation  has  clear- 
ly shown  the  difference  between  an  original  undertak- 
ing, which  is  valid  and  binding  whether  in  writing  or 
not,  and  a  collateral  obligation  for  the  payment  of  an- 
other's debt,  which  must  be  in  writing  to  comply  with  the 
statute.  An  esamination  will  therefore  be  made  of  a 
few  cases  which  tend  to  show  what  circumstances  will 
amount  to  a  direct  and  original  undertaking  by  a  third 
party. 

Liability  of  Party  asking  Physician  to  attend  An- 
other.— Whether  or  not  the  mere  request  by  a  third 
party  for  a  physician  to  call  upon  a  particular  patient, 
without  stating  that  he  acts  as  agent  for  such  patient, 
will  render  the  third  party  liable  to  the  physician  for 
services  rendered  the  particular  patient  is  a  question 
upon  which  there  is  some  conflict,  the  courts  in  the 
State  of  New  York  holding  the  third  party  liable  in 
such  cases,  while  those  of  other  States  in  which  the 
question  has  arisen  renounce  the  doctrine  of  liability 
under  such  circumstances. 

An  extreme  case  of  the  sort  arose  in  ISTew  York  city 
in  1873.     A  person  called  at  the  office  of  a  physician. 


RIGHTS  AND  LIABILITIES  OF  THIKD  PARTIES.   95 

The  physician  being  absent,  he  wrote  upon  his  business 

card,  "  Call  on  Mrs. ,  at  No.  —  Broadway/'  and  left 

it  with  the  clerk,  with  the  request  to  hand  it  to  the 
physician  and  tell  him  to  come  as  soon  as  possible. 

The  jury  rendered  a  verdict  for  the  physician,  and 
the  court  to  which  the  case  was  appealed  refused  to 
disturb  the  verdict.  The  court,  in  the  opinion,  said: 
"  There  was  nothing  on  the  card  to  indicate  to  the 
plaintiff,  before  he  rendered  the  services,  that  the  de- 
fendant had  called  at  his  office  at  Mrs.  's  request, 

and  that  he  was  therefore  only  acting  as  her  messenger. 

"  The  defendant  might  very  readily  have  secured 
himself  from  all  liability  by  simply  writing  the  mem- 
orandum on  a  blank  card,  or  by  adding  to  what  he  wrote 
on  his  own  card  something  that  would  have  apprised 
the  plaintiff  of  the  fact  that  he  acted  in  the  transaction 

for  Mrs. as  her  agent. . . .  Having  neglected  to  do 

this,  the  plaintiff  was,  under  the  circumstances,  justi- 
fied in  believing  that  he  was  employed  and  would  be 
paid  by  the  defendant."  * 

Later,  in  1896,  the  supreme  court  refused  to  dis- 
turb the  verdict  of  the  jury  fixing  the  liability  upon  a 
son  who  summoned  a  doctor  to  attend  his  father  by  the 
following  words:  "Doctor,  1  want  you  to  come  and  at- 
tend my  father.    He  had  a  doctor  who  was  not  satisfac- 

*  Bradley  vs.  Dodge,  45  How.  Pr.,  5*7. 


96     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

toTj."  In  the  opinion  the  court  cited  the  case  of  Bradley 
vs.  Dodge  with  evident  approval.*  These  eases  repre- 
sent an  extreme  view,  and,  as  the  question  has  never 
been  passed  upon  by  the  court  of  last  resort  in  the  State 
of  New  York,  it  is  impossible  to  say  what  that  tribunal 
will  determine  the  law  to  be. 

The  better  rule  of  law,  it  is  thought,  and  probably 
the  one  which  would  be  followed  in  any  State  except 
New  York,  is  that  the  mere  calling  for  a  physician,  or 
requesting  him  to  call  upon  a  certain  patient,  will  not 
make  one  liable  to  such  physician  for  his  fees  in  the  par- 
ticular service.    This  is  shown  by  these  cases : 

The  superintendent  of  a  cooperage  company  sent  a 
messenger  to  a  physician  summoning  him  to  the  works 
of  the  company  to  attend  an  injured  employee.  The  court 
of  appeals  for  Missouri,  in  considering  the  matter,  said : 
"  We  take  it  that  the  law  will  not  imply,  upon  this  evi- 
dence, a  contract  either  on  the  part  of  the  corporation 

or  on  the  part  of  Mr. (the  superintendent)  to  pay 

for  these  services.  The  general  rule,  no  doubt,  is  that, 
where  a  person  requests  the  performance  of  a  service, 
and  the  request  is  complied  with  and  the  service  per- 
formed, the  law  raises  an  implied  promise  to  pay  the 
reasonable  value  of  the  services.  But  this  implication 
does  not  obtain  where  one  person  requests  a  physician 

*  Foster  vs.  Meeks,  18  Misc.,  461,  41  N.  Y.  Supp.,  950. 


EIGHTS  AND  LIABILITIES  OF  THIKD  PARTIES.   97 

to  perform  services  for  a  patient,  unless  the  relation  of 
the  person  making  the  request  to  the  patient  is  such  as 
to  raise  a  legal  obligation  on  his  part  to  call  in  the 
physician  and  pay  for  the  services.  Where  a  husband 
calls  in  a  physician  to  attend  upon  his  wife,  or  where  a 
father  calls  in  a  physician  to  attend  upon  his  minor 
child,  the  law  implies  a  promise  on  his  part  to  pay  the 
reasonable  value  of  the  services,  because  there  is  a  legal 
obligation  on  his  part,  in  either  case,  to  furnish  neces- 
saries for  the  patient's  benefit.  But  no  such  implication 
arises  where  one  calls  in  a  physician  to  attend  upon  a 
stranger,  or  upon  one  to  whom  he  is  under  no  legal  ob- 
ligations." Quoting  further  in  the  same  case,  the  court 
said :  "  The  reason  and  policy  of  this  rule  are  obvious, 
especially  in  cases  like  the  present.  When  a  person  is 
dangerously  wounded,  and  perhaps  unable  to  speak  for 
himself,  or  suffering  so  much  that  he  does  not  know  how 
to  do  it,  any  person  will  run  to  the  nearest  surgeon  in 
the  performance  of  an  ordinary  office  of  humanity.  If 
it  were  the  law  that  the  person  so  going  for  the  sur- 
geon thereby  undertakes  to  become  personally  respon- 
sible for  the  surgeon's  bill,  and  especially  for  the  sur- 
geon's bill  through  the  long  subsequent  course  of  treat- 
ment, many  would  hesitate  to  perform  this  office,  and 
in  the  meantime  the  sufferer  might  die  for  the  want  of 
necessary  immediate  attention."  * 

*  ileisenbach  vs.  The  Southern  Cooperage  Co.,  45  Mo.  App.,  232. 


98     THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

A  case  stronger  than  the  one  above  given  is  reported 
in  Vermont.  A  brother  who  had  been  acquainted  with 
a  physician  took  him  to  see  his  insane  brother  and  ear- 
nestly requested  him  to  undertake  the  treatment  of  the 
insane  patient.  There  was  no  express  agreement  as  to 
the  payment  for  the  services.  The  court,  in  considering 
this  case,  said :  "  It  appears  that  all  of  the  services  were 
performed  for  the  brother  of  the  defendant,  who, 
though  insane,  was  liable  therefor.  The  services  were 
not  beneficial  to  the  present  defendant,  and  he  was  under 
no  legal  obligation  to  pay  for  them  unless  as  an  express 
undertaking,  or  unless  it  may  fairly  be  inferred  from 
the  evidence  that  it  was  the  intention  of  both  parties 
that  the  plaintiff  should  perform  the  services  and  the 
defendant  should  pay  therefor."  * 

In  the  case  of  Eankin  vs.  Beale,  a  father  sent  for 
a  physician  to  attend  his  adult  son  at  the  father's  house, 
and  after  the  services  were  rendered  agreed  with  the 
physician  to  pay  for  them.  The  court  held  that  the 
father  was  not  bound  by  merely  sending  for  the  physi- 
cian to  pay  his  fee,  and  the  promise  of  payment  being 
made  after  the  services  were  rendered  was  without  con- 
sideration and  void.f 

A  third  party,  acting  as  messenger,  was  sent  for  a 
certain  physician  to  assist  in  the  performance  of  an 

*  Smith  vs.  Watson,  14  Vt.,  332. 

f  Rankin  vs.  Beale,  68  Mo.  App.,  325. 


EIGHTS   AND  LIABILITIES   OF  THIRD   PARTIES.    99 

operation.  ISTot  finding  him  in,  he  went  to  the  office  of 
another  physician  and  said:  "I  have  come  after  you 
to  go  and  see  a  sick  man.'^  The  third  party  went  part 
way  with  the  physician  to  the  patient's  house,  when, 
meeting  with  another  person  going  to  see  the  patient, 
he  separated  from  the  physician.  Upon  arriving  at  the 
patient's  house,  the  doctor  who  was  in  attendance  on 
the  sick  man  explained  to  him  what  had  occurred,  and 
said  that  the  physician  who  had  just  arrived  would  as- 
sist in  the  operation,  which  was  assented  to,  and  the 
operation  was  performed.  The  court  said :  "  The  evi- 
dence tended  to  show  that  the  plaintiff  (the  physician) 
Vas  aware  of  the  fact  that  the  defendant  acted  merely 
as  a  messenger,  and  did  not  intend,  or  expect,  to  make 
himself  personally  liable  for  the  services  which  were 
to  be  rendered  to  the  sick  man.  If,  upon  the  explana- 
tion made  by  the  doctor  in  attendance,  the  plaintiff  was 
not  willing  to  assist  at  the  instance  and  on  the  credit 
of  the  sick  man,  it  was  his  duty  then  to  make  known  his 
objections. 

"  To  hold  the  defendant  liable  under  these  circum- 
stances would  deter  every  one  from  doing  the  charitable 
office  of  going  after  a  doctor  for  a  sick  neighbor."  * 

A  physician  attending  a  patient  who  was  injured 
and  lying  at  his  son-in-law's  house  proposed  on  several 

*  Smith  vs.  Riddick,  5  Jones  Law  (N".  C),  342. 


100    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

occasions  to  discontimie  his  services,  when  he  was  re- 
quested not  to  do  so  by  the  son-in-law.  After  the  pa- 
tient's death  the  physician  presented  his  bill,  amount- 
ing to  five  hundred  dollars,  to  the  son-in-law,  as  a  claim 
against  him  personally,  and  asked  its  payment.  He  did 
not  deny  his  responsibility,  but  objected  to  the  amount; 
and  after  a  dispute  and  some  angry  words  he  wrote  an 
order  upon  an  attorney  for  two  hundred  dollars  to  be 
paid  out  of  a  certain  claim  when  collected,  and  handed 
it  to  the  physician,  saying  he  would  give  him  that,  and 
would  not  pay  him  another  cent,  and  if  he  did  not  take 
that  he  would  not  get  anything.  The  account  was 
charged  upon  the  physician's  books  to  the  patient,  and 
when  the  bill  was  presented  to  the  son-in-law  he  was 
the  patient's  administrator;  but  that  was  unknown  to 
the  physician.  The  court  said :  "  Though  the  physician 
in  the  beginning,  may  have  rendered  services  solely  upon 
the  patient's  responsibility,  in  the  absence  of  a  special 
contract  he  was  not  bound  to  continue  to  do  so,  and  had 
the  right  to  discontinue,  and  enter  into  a  contract  with 
the  son-in-law  to  become  responsible  for  his  subsequent 
services ;  but,  in  such  case,  the  burden  is  on  him  to  show, 
not  only  a  discontinuance,  or  a  proposal  to  discontinue, 
but  also  an  agreement  on  the  part  of  the  son-in-law  to 
be  responsible.  There  is  no  pretense  of  an  express  agree- 
ment; in  the  absence  of  such,  it  was  necessary  for  the 
physician,  in  order  to  entitle  him  to  the  affirmative 


EIGHTS  AND  LIABILITIES  OP  THIRD  PARTIES.  101 

charge,  to  prove  facts  undisputed,  from  which,  the  law 
would  conclude  an  actual,  though  implied,  agreement. 
The  cause  of  the  physician's  proposal  to  discontinue  his 
attendance  does  not  appear.  .  .  .  Every  person  who 
may  go  for  the  regular  attending  physician  when  need- 
ed by  his  patient,  or  who,  from  considerations  of  friend- 
ship or  humanity,  may  request  him  not  to  discontinue 
his  attendance,  does  not  render  himself  responsible  for 
the  services  of  the  physician.  Whether  he  does  or  not, 
depends  upon  the  attendant  circumstances.'^  * 

In  the  following  cases  circumstances  have  been 
shown  which  were  considered  equivalent  to  a  direct  con- 
tract or  undertaking  to  pay  the  indebtedness. 

In  the  case  of  Clark  and  Meigs  vs.  "Waterman,  a 
physician  was  called  by  the  defendant  to  attend  a  girl 
who  had  lived  with  him  from  the  time  she  was  eight 
until  she  was  eighteen  years  of  age,  and  who  had  spent 
nearly  seven  eighths  of  her  time  subsequent  thereto,  up 
to  the  time  of  her  sickness  and  death,  in  his  household. 
The  defendant  manifested  much  interest  in  the  case,  was 
dissatisfied  with  the  services  of  the  first  physician  em- 
ployed, discharged  him,  and  employed  another  physician 
to  attend  the  patient ;  he  called  for  the  bills  of  the  physi- 
cians to  lay  before  the  town,  "  to  see  if  they  would  not 
assist  him."  These  facts  were  considered  sufficient  to 
show  that  the  defendant  intended  and  gave  the  plaintiffs 

*  Curry  vs.  Shelby,  90  Ala.,  277,  7  So.  Rep.,  922. 


102    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

to  understand  that  he  was  himself  the  employer,  and  he 
was  accordingly  held  liable."' 

The  employee  of  a  lumber  company  was  injured, 
not  while  in  the  course  of  his  employment,  but  in  a  pri- 
vate brawl.  The  secretary,  treasurer,  and  general  busi- 
ness manager  of  the  company  sent  a  telegram  to  a 
physician  as  follows : 

"  To  Dr. :  Come  here  immediately  by  quickest 

means;  man  shot  in  breast. 

[Signed.]  " Lumber  Company." 

The  doctor  responded,  and  continued  his  visits  for 
six  weeks.  The  bill  was  presented  to  the  company,  but 
they  denied  liability  and  refused  to  pay.  The  secretary- 
treasurer  and  manager  denied  his  liability,  but  offered, 
by  way  of  compromise,  to  pay  ten  dollars,  the  price  of  the 
first  visit.  The  offer  was  refused,  and  suit  brought 
against  the  company  and  the  officer  who  sent  the  tele- 
gram. It  will  be  observed  that  the  telegram  by  which 
the  physician  was  summoned  was  not  a  request  for  him 
to  attend  any  particular  person,  but  an  order  for  him 
to  report  to  the  company  direct.  So  far  as  the  reported 
case  shows,  the  sufficiency  of  this  order  to  bind  them, 
had  it  been  properly  authorized,  does  not  seem  to  have 
been  questioned;  but  the  company  contested  the  claim 
on  the  ground  that  the  officer  sending  the  telegram  had 
no  authority,  express  or  implied,  to  bind  it  to  pay  for 
*  Clark  and  Meigs  vs.  Waterman,  7  Vt.,  76. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.  103 

such  services.  The  officer's  excuse  for  using  the  com- 
pany's name  was  that  he  was  personally  unknown  to  the 
physician,  and  was  afraid  the  physician  would  not  come 
unless  summoned  in  the  company's  name.  The  trial 
court  found  that  the  company  was  not  liable,  but  the 
secretary  was  personally  liable.  The  principle  upon 
which  the  secretary  was  held  liable  is  that  if  the  agent 
exceeds  his  authority,  so  that  his  principal  is  not  bound, 
he  will  himself  be  liable  for  the  damages  thus  occa- 
sioned to  the  other  contracting  party,  although  he  may 
have  been  innocent  of  any  intention  to  defraud.* 

A  landlord  sent  orders  to  a  physician  requesting  him 
to  call  upon  his  tenants.  The  physician  understood  from 
the  orders  that  the  landlord  intended  to  pay,  and  accord- 
ingly charged  the  services  to  him  and  made  no  efforts 
to  collect  from  the  tenants.  The  landlord  testified  that  he 
did  not  consider  that  the  orders  made  him  personally  re- 
sponsible; afterward,  however,  he  offered  the  physician 
some  fodder  to  apply  on  the  account,  and  also  promised 
to  make  a  payment  of  money  at  a  stated  time.  The  trial 
justice  gave  judgment  against  the  landlord  for  the  full 
amount  of  the  claim,  and  the  appellate  court  refused  to 
disturb  the  judgment,  as  there  seemed  to  be  evidence  to 
support  such  a  judgment,  f 

The  question  whether  or  not  an  implied  promise  by 

*  Dale  and  Banks  vs.  Donaldson  Lumber  Co.,  48  Ark.,  188. 
f  Speer  vs.  Meschine,  46  S.  C,  505,  24  S.  E.  Rep.,  829. 


104   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

a  third  person  to  pay  exists  in  a  particular  case  is  nearly 
always  one  of  fact,  to  be  determined  by  the  jury,  whose 
duty  it  is  to  consider  all  of  the  attendant  circumstances 
and  carefully  weigh  the  evidence  of  the  parties,  plaintiff 
and  defendant,  and,  when  such  evidence  is  conflicting,  to 
consider  the  character  and  reputation  for  truth  and 
veracity  of  the  witnesses,  their  intelligence  and  oppor- 
tunity for  knowing  the  real  truth,  and  all  other  matters 
which  bear  upon  the  question  at  issue. 

Liability  of  Corporation  for  Employment  by  Agent. 
— A  prolific  source  of  litigation  is  the  question  of 
whether  or  not  the  employment  of  a  physician  by  an 
agent  or  officer  to  attend  an  injured  employee  binds  the 
corporation  or  company  whom  he  represents  to  pay  the 
physician's  fee. 

This  question  arises  more  frequently  in  connection 
with  railroad  companies  than  with  all  other  concerns, 
the  character  of  the  employees'  duties  being  such  that 
they  are  liable  to  become  seriously  injured  at  almost 
any  time  and  at  any  point  on  the  line  of  the  employer. 
When  such  accidents  occur  the  services  of  a  physician 
are  needed  at  once,  and  it  is  usual  for  an  employee 
having  the  highest  authority  in  the  immediate  locality, 
usually  the  station  agent  or  conductor,  to  summon  and 
employ  for  the  company  the  nearest  competent  physi- 
cian and  surgeon.  The  railroad  companies,  instead  of 
meeting  such  obligations  promptly,  have  manifested  a 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    105 

preference  to  avoid  paying  for  the  services  rendered  in 
such  cases  when  the  circumstances  of  hiring  are  not  such 
as  legally  to  bind  them  to  pay.  A  careful  examination, 
therefore,  of  what  will  and  what  will  not  amount  to  a 
binding  obligation  on  the  part  of  the  company  will  be 
of  material  value. 

General  Eule  of  Liability. — It  may  be  stated  as  a 
general  rule  that  a  company  or  corporation  is  under  no 
legal  obligation  to  provide  medical  attendance  for  per- 
sons injured  in  its  service ;  and  if  a  physician  or  surgeon 
seeks  to  recover  from  a  company  for  attendance  upon 
an  employee  so  injured,  he  must  show  that  he  was  em- 
ployed to  render  such  services  by  a  servant  or  oflBcer  of 
the  company  having  authority  to  employ  him;  or,  if  the 
person  employing  him  did  not  have  authority  so  to  do, 
he  must  show  a  subsequent  ratification  by  those  having 
authority  to  act  for  the  company  in  such  cafaeity.* 

Who  has  Authority. — It  is  a  general  rule  of  law 
that  one  who  deals  with  an  agent  is  bound  to  Imow  at 
his  peril  the  extent  of  the  agent's  authority.  This  rule 
should  be  kept  in  mind  while  considering  who  has  and 
who  has  not  authority  to  bind  his  principal. 

*  Toledo,  Wabash,  and  Western  Ry.  Co.  vs.  Prince,  50  111.,  26.  This 
rule  is  probably  changed  in  South  Carolina  by  a  statute  which  imposes 
upon  the  railroad  company  the  duty  of  giving  notice  to  the  most  accessi- 
ble physician  of  all  accidents  which  occur  on  its  road.  Rev.  Statutes  of 
South  Carolina,  §  1 690. 


106    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS.      ' 

The  president  of  a  railroad  company  has  authority 
to  employ  a  physician  and  surgeon  to  attend  its  injured 
employees,  and  by  so  doing  binds  the  company  to  pay  for 
such  services. 

It  is  pretty  well  settled  that  a  general  superintend- 
ent has  the  same  authority.*  In  the  case  of  Cincinnati, 
Indianapolis,  St.  Louis,  and  Chicago  Eailroad  Company 
vs.  Davis,  the  company  endeavored  to  escape  liability 
on  the  ground  that  it  employed  a  chief  physician  and 
surgeon  whose  duty  it  was  to  employ  surgeons  to  give 
professional  attention  to  persons  injured  by  its  trains. 
Justice  Elliott  said :  "  It  would  be  unreasonable  to  re- 
quire a  surgeon  to  give  professional  assistance  to  a 
person  injured  by  the  company's  trains,  and  then  deny 
him  compensation  upon  the  ground  that  the  superin- 
tendent had  no  authority  to  employ  him  because  that 
authority  was  lodged  in  a  chief  surgeon.  Nor  are  we 
willing  to  sanction  a  rule  imposing  upon  the  surgeons 
whose  services  are  requested  by  the  superintendent  the 
duty  of  making  specific  inquiry  as  to  the  scope  of  the 
superintendent's  authority.  Such  a  rule  would  operate 
harshly  in  many  cases,  for,  if  the  surgeon  must  stop  to 
make  inquiries  before  leaving  his  home  or  office,  the  in- 
jured man  might  perish.  Better  railroad  companies 
should  be  held  responsible  for  the  acts  of  such  a  high 

*  Atchison  and  N.  R.  Co.  vs.  Reecher,  24  Kan.,  228 ;  McCarthy  vs. 
Missouri  R.  Co.,  15  Mo.  App.,  385. 


EIGHTS  AND  LIABILITIES  OP  THIRD  PARTIES.    107 

officer  as  a  general  superintendent,  although  as  between 
him  and  his  principal  that  officer  may  usurp  authority 
that  is  vested  in  a  subordinate  agent,  than  that  a  sur- 
geon who  obeys  the  summons  of  a  superintendent  should 
be  compelled  to  go  unpaid."  * 

This  is  undoubtedly  the  correct  rule,  notwithstand- 
ing the  superior  court  of  the  city  of  New  York  held 
in  1853  that  the  superintendent  of  the  New  York  and 
Harlem  Eiver  Eailroad  Company  would  not  be  pre- 
sumed to  have  authority  to  bind  his  company  to  pay 
for  medical  services  engaged  by  him  as  officer  of  such 
company.  The  evidence  showed  that  the  superintend- 
ent had  a  general  supervisory  control  over  the  whole 
line  of  the  road,  everything  connected  with  the  run- 
ning of  the  road  being  under  his  supervision  and  con- 
trol, and  that  he  paid  money  to  drivers,  conductors,  and 
other  persons  employed  by  him  as  superintendent,  but 
had  no  direction  over  the  treasury.  The  court  argued 
from  this  evidence  that  it  did  not  appear  that  the  super- 
intendent had  authority  to  arrange  and  liquidate  claims 
made  against  the  company  for  damages  resulting  from 
the  negligence  of  its  agents  and  servants,  and  that  the 
power  exercised  in  employing  a  surgeon  to  attend 
one    employed   by    the    road   was    analogous    thereto. 


*  Cincinnati,  Indianapolis,  St.  Louis,  and  Chicago  R.  Co.  vs.  Davis 
120  Ind.,  99,  9  L.  R.  A.,  503,  2.5  N.  E.  Rep.,  818. 
8 


108    THE  LAW  m  ITS  RELATIONS  TO  PHYSICIANS. 

and  was  consequently  not  within  the  scope  of  his  au- 
thority.* 

As  this  case  was  not  decided  by  a  court  of  highest 
authority  in  the  State,  and  is  in  direct  conflict  with 
reason  and  justice,  and  as  well  with  the  courts  of  all 
other  States  which  have  passed  upon  the  question,  it 
is  doubted  whether  the  decision  would  be  regarded 
as  a  proper  precedent  to  follow  even  in  New  York 
State. 

The  division  superintendent  also  has  authority  to 
employ  physicians  and  surgeons  on  behalf  of  the  com- 
pany, f  The  supreme  court  of  Kansas  recognizes,  how- 
ever, a  distinction  between  professional  services  rendered 
to  employees  and  those  rendered  to  injured  passengers 
upon  the  request  of  the  division  superintendent;  while 
in  the  former  case  they  uphold  the  presumption  of  his 
authority  to  bind  the  company,  in  the  latter  they  re- 
pudiate the  doctrine. J 

A  general  agent  or  general  manager  of  a  railroad 
company,  which  are  judicially  defined  as  being  the 
same,  is  likewise  presumed  to  have  power  to  procure 
medical  attendance  for  an  employee  injured  in  the 
service  of  their  company.* 

*  Stephenson  vs.  New  York  and  Harlem  River  R.  Co.,  2  Duer,  341. 

f  U.  P.  R.  Co.  vs.  Winterbotham,  52  Kan.,  433. 

X  U.  P.  R.  Co.  vs.  Beatty,  35  Kan.,  265. 

*=  Atlantic  and  P.  R.  Co.  vs.  Reisner,  18  Kan.,  458. 


RIGHTS  AND  LIABILITIES  OP  THIRD  PARTIES.   109 

Any  agent,  employee,  or  servant  of  the  company, 
if  properly  authorized,  and  acting  in  accordance  with 
his  instructions,  may  bind  the  company  for  services  of 
a  physician  or  surgeon  rendered  at  his  request.  Where 
an  inspector  of  a  street-railway  company  who  was  in- 
structed by  the  company  "  to  see  that  those  injured  were 
taken  somewhere  where  medical  aid  could  be  given,"  em- 
ployed a  physician  to  attend  a  passenger  who  was  injured 
in  getting  off  the  car,  the  company  was  held  to  pay  the 
physician's  fee.*  And  so,  when  a  physician  was  em- 
ployed by  an  agent  or  employee  of  a  brewing  company 
to  attend  an  employee  who  had  been  injured,  and  the 
physician  inquired  of  the  agent  employing  him  who 
would  be  responsible  for  his  medical  attention  to  the 
injured  employee,  the  agent  replied  that  he  had  no 
authority  to  bind  the  company,  but  he  would  write  to 
them  and  let  the  physician  know.  On  the  following 
day  the  agent  showed  the  physician  a  telegram  from  the 
company  as  follows :  "  Have  the  negro  treated."  The 
physician  relied  upon  the  telegram,  and  the  court  held 
that  he  was  justified  in  his  conclusion  that  the  agent 
was  authorized  to  procure  medical  services  on  behalf  of 
the  company  to  "  have  the  negro  treated."  f 

For  an  agreement  by  a  company  to  pay  a  physi- 

*  Hanscom  vs.  Minneapolis  St.  Ry.  Co.,  53  Minn.,  119,  20  L.  R.  A., 
695,  54  N.  W.  Rep.,  944. 

f  Montgomery  Brewing  Co.  vs.  Caffee,  93  Ala.,  132,  9  So.  Rep.,  573, 


110    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

clan's  fees  to  be  of  such  a  character  as  to  enable  the 
physician  rendering  services  to  avail  himself  of  it, 
such  agreement  or  contract  must  be  made  with  him 
direct,  either  by  an  officer  or  agent  of  the  company  prop- 
erly authorized  to  make  such  contract.* 

If,  for  example,  a  physician  is  called  by  one  in- 
jured in  a  railroad  accident  to  attend  him,  the  physi- 
cian's contract  is  with  the  patient ;  and  the  relation  does 
not  change  even  though  the  president  of  the  railroad 
calls  upon  the  patient  and  tells  him  to  employ  any 
physician  or  surgeon  he  chooses  and  the  company  will 
pay  the  expense,  f  This  promise  to  the  patient  does 
not  create  a  privity  between  the  company  and  the 
physician.  If,  however,  the  promise  were  made  to 
the  physician  direct  and  acted  upon  by  him,  the  com- 
pany would  be  bound  to  him  in  the  full  amount  of 
his  fee. 

Where  a  company  contracts  with  a  physician  to  at- 
tend an  employee  who  has  been  injured,  and  reserves 
the  right  to  determine  what  is  a  reasonable  compensa- 
tion, the  court  has  held  that  the  physician  was  bound 
by  such  reservation,  and  would  not  be  permitted  to 
recover  a  greater  amount  than  that  fixed  upon  as  a 
reasonable  compensation  and  tendered  by  the  company. 


*  Thomas  Mfg.  Co.  vs.  Prather,  65  Ark.,  27,  44  S.  W.  Rep.,  218. 
f  Canney  vs.  S.  P.  C.  R.  Co.,  63  Cal.,  501. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES,    m 

The  reason  upon  which  the  court  holds  the  physician  to 
this  arbitrary  determination  of  the  amount  of  his  fee  is 
that  the  company  is  under  no  legal  obligation  to  supply 
such  medical  attendance,  and  therefore  if  it  does  as- 
sume such  obligation  it  has  the  right  to  impose  such 
conditions  as  it  sees  fit.*  It  is  doubtful,  however, 
whether  the  courts  will  extend  the  application  of  this 
doctrine,  or  will  apply  it  to  this  extent  where  the  em- 
ployee is  injured  by  reason  of  the  negligence  of  the  com- 
pany. 

It  is  pertinent  to  state  in  passing  that  a  contract  by 
a  physician  with  a  railroad  company  to  render  profes- 
sional services  to  employees  of  the  company,  or  to  those 
to  whom  the  company  is  liable  for  personal  injuries, 
does  not 'bind  the  physician  to  render  services  to  persons 
injured  while  trespassing  on  the  property  of  the  com- 
pany, f 

Who  has  not  Authority. — It  seems  well  settled  that 
the  authority  to  employ  a  physician  on  behalf  of  the 
company  is  not  included  in  the  general  power  and 
authority  vested  in  the  conductor,  roadmaster,  or  sta- 
tion agent  by  virtue  of  his  ofBce  or  position.  J  And  it 
makes  no  difference  however  positively  such  employee 

*  Fraser  vs.  San  Francisco  Bridge  Co.,  103  Cal.,  79. 

j;  Directors  of  Poor  vx.  Donnelly  et  al.,  5  Cent.  Rep.  (Pa.),  269. 

X  The  Peninsular  Railroad  Co.  vs.  Gary,  22  Fla.,  356  ;  Tucker  vs.  St. 
Louis,  K.  C,  and  N.  R.  Co.,  54  Mo.,  Ill ;  Sevier  vs.  Birmingham  S.  aud 
T.  R.  R.  Co.,  92  Ala.,  258. 


112    THE  LAW  IX  ITS  RELATIONS  TO  PHYSICIANS. 

promises  that  the  company  will  pay,  such  engagement 
and  promise  are  wholly  outside  of  the  scope  of  their 
general  authority.*  Xor  is  there  any  such  authority 
lodged  in  an  engineer,  f  Xor  is  the  attorney  or  solicitor 
of  the  road  presumed  to  have  such  authority.  J 

The  courts  have  also  held  that  the  employment  of 
a  physician  or  surgeon  for  the  treatment  of  injured 
employees  does  not  come  ordinarily  within  the  scope  of 
the  duties  of  a  general  manager  of  an  ordinary  manu- 
facturing business/  nor  of  the  manager  of  a  planta- 
tion, j  I 

In  this  regard,  it  will  be  observed,  a  distinction  is 
drawn  between  a  railroad  company,  which  is  bound  by 
such  contracts  made  by  its  general  manager  or  general 
agent,  and  an  ordinary  manufacturing  business. 

"WHiether  or  not  a  physician  regularly  employed  by  a 
railroad  company  to  treat  its  injured  employees  has 
power  to  bind  the  company  for  board  and  care  of  such 
injured  employees  has  several  times  been  considered, 
and  the  courts  have  held  that  he  has  no  such  authority.'^ 
In  the  case  of  St.  Louis,  Arkansas,  and  Texas  Eailway 

*  St.  LouLs  and  K.  C.  R.  Co.  vs.  Olive,  40  El.  App.,  82. 
+  Cooper  I'.s'.  X.  Y.  C.  and  H.  R.  R.  Co.,  6  Hun,  276. 

X  St.  Louis,  Ark.,  and  Tex.  R.  Co.  vs.  Hoover,  53  Ark.,  Sl1. 

*  i;haplin  vs.  Freeland,  7  Ind.  App.,  676,  34  X.  E.  Rep.,  lOOY. 
il  Malone  vs.  Robinson,  12  So.  Rep.,  709  (Miss.). 

^  Chicago  and  E.  R.   Co.  ?'.«.  Behrenp.  9  Ind.  App.,  575,  37  N.  E., 
26 ;  Bushnell  vs.  C.  and  X.  W.  R.  Co.,  69  la.,  620. 


RIGHTS  AND  LIABILITIES  OP  THIRD  PARTIES.    113 

Company  vs.  Hoover,  it  was  held  that  the  railroad  com- 
pany was  under  no  obligation  to  refund  money  ad- 
vanced by  the  physician  for  such  board  and  care  ren- 
dered to  an  injured  employee.* 

An  exception  to  the  rule  that  a  conductor  or  em- 
"ployee  of  the  class  just  considered  is  unauthorized  to 
employ  a  physician  is  found  in  the  humane  doctrine  of 
emergency,  which  is  recognized  as  law  by  the  courts 
of  Indiana,  but  which  has  not  been  followed  by  the 
courts  of  any  other  States. 

This  doctrine  is  based  upon  the  theory  that  the  con- 
ductor or  employee  of  highest  authority  in  the  imme- 
diate locality  represents  the  company,  and  that  in  case 
of  a  sudden  and  pressing  emergency  extraordinary  au- 
thority and  powers  arise  in  him,  adequate  to  the  urgent 
and  immediate  demands  of  the  occasion,  f 

This  extraordinary  power  in  the  conductor  or  other 
representative  is  only  coextensive  with  the  duration 
of  the  emergency  which  gives  rise  to  it.  J  If,  there- 
fore, an  employee  is  seriously  injured,  or  injured  in 
such  a  way  that  immediate  attention  should  be  given 
him,  the  conductor  or  employee  of  highest  authority  is 
empowered  to  engage  the  services  of  a  physician  and 

*  St.  Louis,  Ark.,  and  Tex.  R.  Co.  vs.  Hoover,  5.3  Ark.,  STY. 
+  Terre  Haute  and  Indianapolis  R.  Co.  vs.  McMurray,  98  Ind.,  S^B. 
X  Ohio  and  M.  R.  Co.  vs.  Early,  141  Ind.,  73,  28  L.  R.  A..  646,  40 
N.  E.  Rep.,  257. 


114   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

bind  the  company  in  so  doing.  This  contract,  how- 
ever, can  only  be  binding  upon  the  company  for  such 
services  as  are  immediately  and  urgently  necessary. 

In  a  case  where  a  large  number  of  employees  are  in- 
jured, and  there  being  present  only  one  of  the  com- 
pany's surgeons,  who  is  unable  to  attend  all  of  the* 
wounded,  the  conductor  is  authorized  to  employ  another 
surgeon  to  amputate  the  leg  of  one  of  the  persons  in- 
jured, and  the  company  is  bound  to  pay  for  such  opera- 
tion, but  not  for  attention  given  to  such  employee  after 
the  operation  was  performed.*  This  doctrine  empower- 
ing minor  agents  to  bind  the  company  for  medical 
services  rendered  in  case  of  emergency,  it  will  be  re- 
membered, has  been  recognized  as  law  only  by  the 
courts  of  Indiana.  Whether  or  not  this  doctrine  will 
gain  recognition  in  other  States  can  not  be  predicted 
with  certainty,  but,  as  it  is  founded  upon  good  reason- 
ing and  justice,  a  more  extended  adoption  of  the  rule 
may  be  hoped  for. 

Ratification. — While  the  railroad  company  is  ordi- 
narily under  no  obligation  to  pay  for  the  services  of  a 
physician  employed  by  an  employee  or  inferior  officer, 
it  frequently  happens  that  the  company  becomes  liable 
for  the  payment  of  a  physician's  fee  when  he  is  pri- 


*  Evansville  and  R.  R.  Co.  vs.  Freeland,  4  Ind.  App.,  207,  30  N.  E. 
Rep.,  803. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    115 

marily  so  employed,  through  the  ratification  of  such 
employment  by  the  conduct  of  the  higher  officers  of 
the  company. 

It  is  a  well-established  rule  of  law  that  such  a 
hiring  can  not  be  ratified  excepting  by  an  officer  whose 
power  and  authority  are  sufficient  to  enable  him  to  make 
the  contract  primarily  which  he  assumes  to  ratify  by 
subsequent  words  or  conduct.* 

The  question  of  whether  or  not  the  facts  in  a  given 
case  amount  to  a  ratification' of  an  unauthorized  hiring 
is  usually  one  for  the  Jury  to  determine.  The  doctrine 
can  therefore  be  better  illustrated  by  examining  a  few 
cases  than  in  any  other  way. 

In  the  case  of  Pacific  Eailroad  Company  vs.  Thomas, 
a  physician  was  employed  by  the  assistant  master  me- 
chanic and  the  section  boss  to  attend  an  employee  who 
was  injured.  This  hiring  did  not  have  the  effect  of  ob- 
ligating the  company  to  pay  the  physician  for  his  serv- 
ices, notwithstanding  both  the  section  boss  and  assist- 
ant master  mechanic  said  that  they  would  see  that  the 
railroad  company  paid  him;  but  the  physician,  before  he 
had  finally  completed  the  services,  sent  a  letter  to  the 
superintendent  of  the  railroad,  explaining  the  circum- 
stances of  his  employment  and  inclosing  a  bill  for  his 
services.     The  superintendent  paid  no  attention  to  this 

*  T.,  W.,  and  W.  R.  R.  Co.  vs.  Rodrigues,  41  111.,  189. 


116    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

letter  and  bill.  The  jury  found  upon  this  evidence  that 
the  superintendent  had  by  his  acquiescence  ratified  the 
original  contract  of  hiring.* 

The  station  agent  requested  one  Kodrigues  to  nurse 
and  take  care  of  a  brakeman  who  had  been  injured, 
and  told  him  that  the  railroad  company  would  pay  him 
for  the  services.  Soon  after  he  wrote  to  the  general 
superintendent,  informing  him  what  had  been  done,  but 
received  no  reply.  Eodrigues,  after  performing  the 
services,  presented  his  bill  to  the  station  agent  for  pay- 
ment. Soon  afterward  the  superintendent  conferred 
with  the  station  agent  in  reference  to  the  various  items, 
and  as  to  whether  the  charges  were  reasonable.  The 
superintendent  made  no  objection  at  the  time,  but  said 
i  f  the  charges  were  reasonable  he  would  pay  the  account. 
This  was  held  a  ratification.! 

In  the  case  of  the  Terre  Haute  and  Indiana  Eailroad 
Company  vs.  Stockwell,  the  conductor  of  a  train  which 
ran  into  and  injured  a  man  employed  a  physician  to 
dress  the  wound  and  take  care  of  the  injured  man. 
lie  then  sent  a  telegram  reporting  the  afiair  to  the  gen- 
eral superintendent  and  general  agent,  and  that  evening, 
upon  arriving  in  St.  Louis,  he  reported  to  the  general 
superintendent  in  person  that  he  had  struck  a  man  and 


*  Pac  P.  Co.  vs.  Thomas,  19  Kan.,  256. 

t  T.,  W.,  and  W.  R.  R.  Co.  vs.  Rodrigues,  47  111.,  189. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    117 

had  emploj^ed  a  physician  to  dress  his  wounds.  The 
physician,  after  rendering  the  services,  addressed  a  let- 
ter to  the  president  of  the  company,  stating  the  circum- 
stances of  the  employment,  the  services  he  had  ren- 
dered in  a  general  way,  and  demanding  pay  therefor. 
The  railroad  company  never  questioned  or  repudiated 
the  employment  as  made  by  the  conductor,  not  even 
after  receiving  the  physician's  letter.  From  this  evi- 
dence the  court  found  that  the  employment  ot  the  physi- 
cian by  the  conductor  was  ratified  and  confirmed.* 

Where  the  station  agent  employed  a  physician  to' 
treat  an  injured  employee  with  the  understanding  that 
the  company  would  pay,  and  the  general  superintendent 
on  the  following  day  came  to  the  town  where  the  in- 
jured employee  was  and  inquired  of  the  station  agent 
regarding  him,  and  seemed  to  be  informed  regard- 
ing the  character  of  the  injury  and  the  treatment 
of  the  surgeon,  but  made  no  objection  or  complaint  in 
reference  to  the  action  of  the  station  agent  in  employ- 
ing a  surgeon,  of  which  he  was  apprised,  and  a  few 
weeks  later  the  general  superintendent  in  conversation 
with  the  physician  informed  him  that  the  pay  would  be 
all  right,  the  contract  of  the  station  agent  was  con- 
sidered ratified,  f 

*  Terre  Haute  and  I.  R.  Co.  vs.  Stockwell,  20  N.  E.  Rep ,  650,  118 
Ind,,  98. 

f  Cairo  and  St.  Louis  R.  Co.  vs.  Mahoney,  82  III.,  73. 


118    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

In  the  case  of  Toledo^  Wabash,  and  Western  Eail- 
road  Company  vs.  Prince,  a  surgeon  was  employed  by 
the  station  agent  to  take  charge  of  a  wounded  man. 
The  station  agent  reported  the  case  to  the  general  super- 
intendent a  few  days  afterward,  and  heard  nothing 
further  until  he  presented  the  bill.  The  superintendent 
then  refused  payment.  The  jury  found  a  verdict  for 
the  plaintiff  on  the  ground  of  ratification.  The  su- 
preme court  of  Illinois  sustained  the  judgment  of  the 
trial  court,  and  in  commenting  on  the  case  said: 
"If  the  superintendent  desired  to  save  the  company 
from  being  held  responsible,  he  should,  on  receiving  the 
report  of  the  case,  have  dissented  from  the  action  of 
the  station  agent,  and  directed  him  to  apprise  the  sur- 
geon of  such  dissent,  instead  of  allowing  the  latter  to 
continue  his  services  under  the  belief  that  he  was  in 
the  employ  of  the  company."  * 

In  apparent  conflict  with  this  and  some  of  the  pre- 
ceding cases  is  a  recent  case  decided  by  the  supreme 
court  of  California,  upon  a  statement  of  facts  very 
similar  to  the  case  above  given.  The  trial  judge  in- 
structed the  jury  that  if  the  defendant  knew  that  the 
plaintiff  was  treating  the  injured  man  on  its  account, 
and  relied  for  compensation  on  the  defendant,  and  the 
defendant  made  no  objection  thereto,  then  the  defendant 

*  Toledo,  Wabash,  and  Western  R.  Co.  vs.  Prince,  50  111.,  21. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    119 

was  liable.  Upon  this  instruction  the  jury  rendered  a 
verdict  for  the  plaintiff,  but  the  supreme  court  re- 
versed the  judgment,  stating  its  reason  as  follows: 
"  We  conclude  that  knowledge  upon  the  part  of  defend- 
ant that  the  plaintiff  was  rendering  services  to  the  in- 
jured man,  and  also  knowledge  of  defendant  that  plain- 
tiff was  relying  on  it  for  compensation  for  the  perform- 
ance of  such  services,  taken  in  connection  with  the  fact 
that  defendant,  possessing  such  knowledge,  made  no  ob- 
jections thereto,  are  circumstances  wholly  inadequate 
to  create  a  legal  liability  against  defendant."  * 

While  those  physicians  living  in  the  States  in  which 
the  cases  above  cited  were  determined  know  how  the 
courts  of  their  respective  State  will  hold,  those  living  in 
States  where  the  particular  question  has  not  been  ad- 
judicated can  not  predict  with  certainty  which  pre- 
cedent their  courts  will  follow;  it  therefore  behooves 
them  to  be  well  within  the  requirements  of  the  rule  rec- 
ognized by  the  California  courts.  To  do  this,  a  physi- 
cian should  immediately  upon  being  employed  by  an 
inferior  officer  or  agent  of  a  company  to  render  serv- 
ices for  such  company,  write  to  some  officer  who  has 
power  to  make  such  a  contract,  informing  him  of  the 
hiring,  stating  that  he  has  undertaken  the  treatment 


*  Deane  vs.  Gray  Bros.  Artificial  Stone  Paving  Co.,  109  Cal.,  433, 
42  Pac.  Rep.,  443. 


120    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

of  the  patient  on  behalf  of  the  company  and  expects 
them  to  pay  his  fee;  and  if  the  agent  originally  hiring 
him  is  without  authority  so  to  do,  he  desires  to  be 
notified  at  once  and  to  be  instructed  whether  or  not  to 
proceed  with  the  treatment  of  the  patient. 

In  the  case  of  Burke  vs.  Chicago  and  West  Michigan 
Eailroad  Company,  a  physician  who  was  attending  an 
injured  employee,  not  having  been  employed  in  the 
first  instance  by  any  one  assuming  to  act  for  the  rail- 
road company,  attempted  to  fix  the  liability  upon  the 
company  by  virtue  of  a  letter  which  he  received  from 
the  chief  surgeon  of  the  company,  which  was  as  follows : 

"1  am  informed  that  you  are  now  attending  , 

an  employee  of  the  Chicago  and  West  Michigan  Eail- 
road Company,  who  was  injured  a  few  weeks  ago. 
Will  you  be  kind  enough  to  inform  me  as  to  his  present 
condition?  Has  he  completely  recovered?  I  would 
like  a  history  of  the  case  since  you  took  charge  of  it. 
Please  send  your  bill  for  services,  itemized  to  me,  if 
you  are  through  with  the  case.'^  It  was  shown  by  the 
company  that  the  chief  surgeon  had  no  authority  to 
employ  a  physician  or  surgeon  to  act  generally  in  a  case, 
but  only  to  act  temporarily  in  case  of  emergency ;  more- 
over, the  court  held,  there  being  no  original  employ- 
ment by  a  representative  of  the  railroad  company,  the 
chief  surgeon's  letter  could  not  be  construed  a  ratifica- 
tion of  such  employment,  even  though  ratification  were 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    121 

authorized  by  him,  nor  could  the  letter  be  construed  as 
a  contract  of  employment.* 

Liability  of  Counties  and  Towns  for  Services  to 
Paupers. — Another  prolific  source  of  litigation  is  the 
question  of  the  liability  of  counties  and  towns  for  medi- 
cal services  rendered  to  their  paupers.  This  right  is 
based  upon  statutes  which  differ  in  the  several  States; 
therefore  a  satisfactory  treatment  of  the  subject  will 
necessarily  be  by  States,  and  will  require  a  greater 
amount  of  space  than  should  be  devoted  to  the  subject 
in  this  chapter. 

The  various  States  have  enacted  laws  calculated  to 
afford  relief  to  the  distressed  poor  who  through  age, 
disease,  or  other  infirmity  are  unable  to  provide  neces- 
sary food,  clothing,  shelter,  and  medical  attendance  for 
themselves ;  but  the  extent  of  the  class  included  in  such 
charitable  enactments,  as  well  as  the  extent  of  the  aid 
afforded  them,  varies  considerably.  In  some  States 
only  those  poor  people  are  entitled  to  medical  attention 
at  public  expense  who  have  been  formally  declared  pau- 
pers by  the  proper  tribunal ;  while  in  others  all  persons 
unable  to  pay  for  necessary  medical  attention,  whether 
declared  paupers  or  not,  and  in  some  States  whether 
residents  or  non-residents,  are  entitled  to  have  their 
physicians'  bills  paid  from  the  town  or  county  treasury. 

*  Burke  U9.  Chicago  and  W.  M.  Rj.  Co ,  12  N.  W.  Rep.,  (Mich.)  997. 


122    THE  LAW  m  ITS  RELATIONS  TO  PHYSICIANS. 

In  some  States,  if  the  officer  whose  duty  it  is  to  author- 
ize the  medical  treatment  of  a  poor  person  wrongfully 
withholds  such  authorization,  the  physician  must  secure 
authority  by  appeal  to  the  proper  tribunal,  treat  the 
patient  at  his  own  cost,  or  leave  him  to  suffer  without 
attention.  In  others  he  may  treat  the  patient  and  sue 
for  and  recover  the  value  of  his  services,  notwithstanding 
the  wrongful  withholding  of  authority  for  such  treat- 
ment. In  case  of  an  accident,  where  persons  without 
property  or  ability  to  pay  for  their  own  medical  treat- 
ment are  severely  injured,  the  physician  may  in  some 
States  give  them  immediate  attention  and  recover  from 
the  town  or  county  the  value  of  such  services;  while  in 
others  he  must  leave  the  patient  to  suffer  and  per- 
haps die  until  he  secures  instructions  from  the  over- 
seers of  the  poor  to  render  medical  services,  if  he 
wishes  to  be  secure  in  the  collection  of  his  fee  for  such 
services. 

The  liability  of  the  town  or  county  for  medical 
attendance  upon  prisoners  confined  in  the  county  jails 
is  also  subject  very  largely  to  the  regulation  of  local 
statutes. 

Post-mortems  at  Coroner's  Inquest. — The  right  of 
the  physician  to  recover  from  the  county  for  services 
in  making  a  post-mortem  examination  when  sum- 
moned for  that  purpose  by  the  coroner  is  in  many  States 
regulated  by  statutes  which  vary  not  only  in  their  form 


RIGHTS  AND  LIABILITIES  OP  THIRD  PARTIES.    123 

of  expression  but  in  the  substance  of  their  provisions  as 
well,  and  which  are  the  subject  of  such  frequent  change 
as  to  render  an  extended  examination  of  them  of  no 
lasting  value.  The  common-law  liability  of  the  county 
and  also  the  meaning  of  many  of  these  statutes  have 
been  the  subject  of  judicial  examination  on  numerous 
occasions  and,  as  these  eases  serve  to  illustrate  the  policy 
of  the  law  with  regard  to  the  compensation  of  physi- 
cians for  this  class  of  services,  they  are  examined  to  some 
extent. 

Upon  the  common-law  liability  of  the  county  for 
the  physician's  fee  for  services  at  a  coroner's  inquest  the 
supreme  court  of  Arkansas,  in  a  recent  case,  expressed 
itself  as  follows :  "  The  statute  makes  it  his  (the  coro- 
ner's) duty  to  use  all  proper  means  to  ascertain  the  truth 
concerning  the  death  of  the  person  over  whose  body  he 
is  required  to  hold  an  inquest.  It  sometimes  occurs  that 
the  cause  of  death  can  only  be  ascertained  by  skillful 
physicians,  and  by  them  only  by  making  an  autopsy. 
How  can  the  coroner  discharge  the  duty  imposed  on 
him  in  such  cases?  He  may  summon  the  physician 
to  testify  and  compel  him  to  swear  to  his  opinion  on 
a  superficial  view  of  the  body,  but  can  not  compel  him 
to  touch  it,  or  do  the  more  nauseous  and  dangerous 
work  of  opening  it,  because  such  an  act  is  not  within 
the  office  of  a  witness.  The  coroner  is  not  expected 
or  required  to  make  the  autopsy  with  his  own  hands. 


124    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

It  i8  not  within  the  line  of  his  official  duties,  and  no 
fee  is  allowed  for  such  work,  for  the  reason  stated. 
Yet  he  is  authorized  to  ascertain  the  truth  concerning 
the  death.  The  conclusion  is  unavoidable:  he  must  in 
such  cases  employ  a  physician  to  make  the  autopsy  and 
ascertain  the  cause  of  death,  as  in  that  case  it  would 
be  the  only  proper  means  by  which  the  truth  could  be 
ascertained."  Commenting  further  upon  the  liability 
for  the  payment  of  the  physician's  fees  for  such  opera- 
tion, the  court  says:  "  Is  he  (the  coroner)  or  the  county 
responsible  for  the  services  of  the  physician?  .  .  .  Such 
services,  though  ancillary  to  the  purpose  of  some  in- 
quests, are  not  official,  and  consequently  were  not  con- 
sidered by  the  legislature  when  it  fixed  the  fees  of 
coroners.  But  there  is  not  only  no  fee  fixed,  but  no 
fund  set  apart  to  the  coroner  for  such  expenses.  To 
hold,  then,  that  he  is  responsible,  under  such  circum- 
stances, would  be  to  require  him  to  contribute  so  much 
gratuitously  to  the  administration  of  justice  and  to 
the  enforcement  of  the  laws.  .  .  .  Such  a  requirement 
would  be  unjust  and  oppressive,  and  contrary  to  the 
spirit  of  our  laws.  As  a  rule,  the  counties  are  respon- 
sible for  the  expense  of  the  administration  of  criminal 
laws.  Both  justice  and  policy  demand  an  adherence  to 
the  rule  in  this  case,  and  that  the  county  should  pay 
a  reasonable  compensation  for  such  services  when  needed 
and  performed — that  is  to  say,  what  they  are  reasonably 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    125 

worth."  *  This  case  is  cited  with  approval  and  followed 
in  a  later  Arkansas  case  decided  in  1895. f 

In  1865  the  supreme  court  of  New  York  held  that 
where  a  physician  was  employed  by  a  coroner  to  per- 
form a  post-mortem  examination  at  the  inquest,  with  no 
special  agreement  that  he  should  receive  his  compensa- 
tion from  other  source  than  the  coroner,  his  only 
recourse  was  to  compel  that  official  to  pay  his  fee;  but 
that  the  coroner  had  the  right  to  recover  from  the 
county  the  amount  paid  to  a  physician  in  such  a  case.  J 
The  legislature,  however,  passed  an  act  in  1874  making 
the  physician's  fee  in  such  a  case  a  direct  charge  against 
the  county.  Since  the  passage  of  this  act  the  physician 
must  look  to  the  county  for  his  pay,  as  the  coroner  is 
released  from  this  liability.* 

In  California  the  liability  of  the  county  for  the 
payment  of  the  physician's  services  in  making  post- 
mortems is  recognized,  but  the  legislature  has  enacted 
a  law  providing  that  "  the  board  of  supervisors  must 
not  hear  or  consider  any  claim  in  favor  of  an  individual 
against  the  county  unless  an  account,  properly  made  out, 
giving  all  the  items,"  is  presented  to  the  board.     A 


*  St.  Francis  Co.  vs.  Cumminp;?,  55  Ark.,  419. 
+  Clark  Co.  vs.  Kerstan,  60  Ark.,  508,  30  S.  W.  Rep.,  1046. 
:j:  Van  Hoevenbergh  vs.  Hasbrouck,  45  Barb.,  19*7. 
»  People  vs.  Board  of  Supervisors,  38  N.  Y.  S.  R.,  964,  15  N.  Y. 
Supp.,  680. 


126    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

claim  of  a  physician  which  was  properly  verified  by 
the  coroner  was  presented  to  the  board  for  allow- 
ance. The  account  was  for  "  making  a  trip  from 
Petaluma  to  Timber  Cove,  and  making  a  post-mortem 

examination  of  the  body  of ,  and  taking  the  stomach 

of  said  deceased  to  San  Francisco  for  analysis."  This 
account  was  held  not  to  fulfill  the  requirements,  as  it  did 
not  give  "  all  the  items."  It  should  have  given  the 
number  of  miles  traveled  in  going  from  Petaluma  to 
Timber  Cove,  and  the  length  of  time  consumed  in  mak- 
ing the  post-mortem  examination;  also  the  number  of 
miles  traveled,  the  time  consumed,  and  the  expense 
incurred  in  taking  the  stomach  to  San  Francisco  for 
analysis.* 

In  Colorado  the  right  to  collect  from  the  county 
is  fixed  by  statute,  which  provides  that  where  the  "  jury 
shall  deem  it  requisite,"  the  coroner  may  summon  one 
or  more  physicians,  and  may  allow  a  reasonable  com- 
pensation subject  to  the  confirmation  of  the  board  of 
county  commissioners.  The  wording  of  this  statute 
does  not,  however,  render  it  incumbent  upon  the  physi- 
cian, when  summoned,  to  inquire  whether  or  not  the 
jury  deemed  it  requisite  to  make  such  an  examination. 
It  is  his  duty  when  so  summoned  to  obey  the  summons, 
and  he  has  a  right  to  assume  that  the  coroner  acted 

*  Christie  vs.  Board  of  Supervisors  of  Sonoma  Co.,  60  Cal.,  164. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    127 

correctly  in  summoning  him,  and  to  rely  upon  such 
official  act.* 

In  Indiana  the  liability  of  the  county  has  been  rec- 
ognized for  many  years.  The  supreme  court  said  in 
1852 :  "  We  have  no  doubt  that  in  a  case  where  a  post- 
mortem examination  is  really  necessary  the  coroner 
may,  by  his  employment,  bind  the  county  to  the  pay- 
ment for  a  sufficiency  of  professional  skill  to  make  the 
examination.  To  that  extent,  at  least,  he  must  be  the 
agent  of  the  county."  f  The  matter  is  now  regulated 
in  the  State  by  statute,  which  provides  that  when  a 
surgeon  or  physician  is  required  to  attend  an  inquest 
held  by  a  coroner,  and  make  a  post-mortem  examina- 
tion, the  coroner  shall  certify  such  service  to  the  board 
of  county  commissioners,  who  shall  order  the  same  paid 
out  of  the  county  treasury.  The  fact  that  an  inquest 
is  conducted  by  a  justice  of  the  peace,  who  is  there 
authorized  to  perform  all  the  duties  of  a  coroner,  and 
the  physician  employed  and  the  certificate  of  services 
made  out  by  the  justice,  does  not  in  any  way  affect 
the  liability  of  the  county  to  pay  the  physician  for 
such  services. J  Nor  does  it  release  the  county  from 
their  liability  in  the  premises  because  the  physician  is 

*  Co.  Commrs.  Pueblo  Co.  vs.  Marshall  et  al,  11  Col,  84,  16  P. 
Rep.,  837. 

\  Gaston  vs.  Board  Commrs.  Marion  Co.,  3  Ind.,  491. 

\  Stevens  vs.  Board  of  Commrs.  Harrison  Co  ,  46  Ind.,  641. 


12S    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

in  the  employ  of  the  county  to  treat  the  poor  of  the 
asylum,  nor  even  where  the  subject  operated  upon  was 
during  his  hfe  a  pauper  whom  it  was  the  physician's 
duty  to  treat  when  sick.*  Incident  to  the  coroner's 
duty  to  hold  inquests  is  his  right  not  only  to  employ 
a  physician  to  perform  a  post-mortem  examination,  but 
also  his  right  to  determine  who  that  physician  shall  be. 
In  the  case  of  the  Board  of  Commissioners  of  Dearborn 
County  vs.  Bond,  the  county  commissioners  employed  a 
physician  to  render  such  services,  and  when  the  coroner 
refused  to  recognize  their  selection,  but  employed  an- 
other physician  and  certified  to  his  claim,  the  board  of 
county  commissioners  refused  to  allow  the  same.  The 
matter  was  appealed,  and  finally  reached  the  supreme 
court,  where  the  claim  was  allowed.  Justice  Best  said : 
"  This  duty  is  imposed  upon  the  coroner,  and  for  the 
purpose  of  enabling  him  to  discharge  it  he  is  empowered 
to  employ  such  means  and  to  select  such  physician  or 
surgeon  as  in  his  judgment  will  enable  him  to  ascer- 
tain the  cause  of  death.  The  duty  thus  imposed  neces- 
sarily confers  the  authority  to  make  his  own  selection 
in  the  faithful  discharge  of  his  duties,  and,  in  this 
respect,  he  can  not  be  superseded  by  the__  board  of  com- 
missioners, upon  whom  no  such  duty  rests."  f 

There  is  in  Indiana,  by  virtue  of  a  statute,  a  limited 

*  Lang  vs.  Bonrd  of  Commrs.  Perry  Co.,  121  Ind.,  133. 

•}  Board  of  Commrs.  of  Dearborn  Co.  vs.  Bond,  88  Ind.,  102. 


EIGHTS  AND  LIABILITIES  OP  THIRD  PARTIES.    129 

exception  to  the  general  rule  of  liability  of  the  county — 
thus:  where  money  and  other  valuables  are  found  upon 
the  body  of  the  deceased  this  property  is  first  subjected 
to  the  .payment  of  the  expenses  of  the  inquest.* 

The  statute  law  of  Iowa  relative  to  the  subject  pro- 
vides that  "when  he  (the  coroner)  or  the  jury  deem 
it  requisite,  he  may  summon  one  or  more  physicians 
or  surgeons  to  make  a  scientific  examination,  who,  in- 
stead of  witness  fees,  shall  receive  such  reasonable 
compensation  as  may  be  allowed  by  the  county  board  of 
supervisors."  f  Under  this  law  the  amount  allowed  by 
the  county  board  is  conclusive  and  can  not  be  increased 
upon  appeal  unless  fraud  can  be  shown  in  fi_xing  such 
amount.  I 

In  Pennsylvania  the  courts  hold  that  the  coroner  has 
the  power  at  common  law  to  employ  a  physician  to 
perform  an  autopsy  and  to  bind  the  county  for  the 
physician's  pay.  The  physician  when  summoned  is 
■ynder  no  obligation  to  investigate  and  determine 
whether  the  inquest  should  be  held ;  this  is  a  matter  left 
to  the  discretion  of  the  coroner,  and  the  physician  may 
safely  rely  upon  the  mere  fact  that  he  is  summoned.* 
Nor  have  the  county  commissioners  the  right  to  appoint 

*  Thornton's  Ind.  St.  1897,  §  8341. 

\  Code  of  Iowa,  §  529,  McClain's  Code,  §  503. 

X  Moser  vs.  Boone  Co.,  91  la.,  359,  55  N.  W.  Rep.,  327. 

*  County  of  Northampton  vs  Innes,  26  Pa.  St.,  156. 


130    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

a  regular  physician  to  perform  such  services,  thereby 
precluding  the  coroner  from  making  his  own  selection.* 
Upon  the  question  of  the  liability  of  counties  for 
the  payment  of  the  fees  of  physicians  for  performing 
post-mortem  examinations  at  coroners'  inquests,  the 
courts  of  the  State  of  Texas  seem  to  stand  alone.  The 
supreme  court  in  1888  held  that  there  was  no  such 
liability  at  common  law,  and  that  there  was  no  statute 
in  the  State  fixing  such  liability  upon  the  counties,  f 
Again,  in  1891,  the  same  court  refused  to  permit  a 
physician  to  recover  the  amount  of  his  reasonable  fee 
with  the  laconic  statement :  "  The  law  permits  no  re- 
covery for  the  services  rendered."  J  This  construction 
of  the  law  being  for  the  second  time  brought  to  the 
attention  of  the  profession  by  the  highest  court  of  the 
State,  they  evidently  realized  its  injustice,  and,  taking 
the  advice  of  the  court  in  the  case  of  Fears  vs.  Nacog- 
doches County,  sought  relief  through  legislative  en- 
actment. At  the  next  session  of  the  legislature,  which 
convened  on  January  10,  1893,  a  law  was  enacted  au- 
thorizing coroners  to  call  in  the  county  physician;  or, 
if  impracticable  to  secure  his  services,  to  summon  any 
regularly  practising  physician  to  perform  a  post-mor- 
tem, and  providing  that  the  county  in  which  such  in- 

*  County  of  Allegheny  vs.  Shaw,  34  Pa.  St.,  301. 

•(  Fears  vs.  Nacogdoches  County,  71  Tex.,  337,  9  S.  W.  Rep.,  265. 

X  Frio  Co.  vs.  Earnest,  IG  S.  W.  Rep.  (Texas),  1036. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    131 

quest  is  held  shall  pay  the  physician  a  fee  of  not  less 
than  ten  dollars  or  more  than  fifty  dollars,  the  excess 
over  ten  dollars  to  be  determined  by  the  county  com- 
missioners' court  after  ascertaining  the  amount  and 
nature  of  work  performed  in  making  such  autopsy.* 

Liability  of  Employer  for  Neglect,  etc.,  of  Physician. 
— The  liability  of  third  parties,  as  contemplated  here- 
tofore in  this  chapter,  is  only  that  which  arises  in 
favor  of  the  physician.  Questions  frequently  arise  as  to 
the  liability  of  third  parties  to  the  patient,  based  upon 
the  transactions  between  the  physician  and  patient. 
While  such  questions  are  not  of  direct  interest  to  the 
physician,  it  is  thought  best  to  give  them  brief  attention. 

Employers,  such  as  railroad  companies,  steamboat 
companies,  mining  companies,  and  the  like,  very  fre- 
quently employ  physicians  to  treat  their  wounded  or 
sick  employees;  in  case  of  negligence  or  malpractice  of 
the  physician,  it  has  been  a  very  common  occurrence  for 
the  injured  employee  to  sue  his  company  to  recover 
damages  for  the  injury  or  loss  suffered  by  him  by  reason 
of  such  negligent  or  improper  treatment  by  the  em- 
ployer's physician  or  surgeon;  but  it  is  now  a  well- 
settled  proposition  of  law  that  the  employer  is  not  liable 
for  the  improper  treatment  by  a  surgeon  in  such  a 
case.  The  relation  between  the  employer  and  physician 
or  surgeon  is  not  that  of  master  and  servant,  which  in 

*  Laws  of  Tex.,  1893,  155. 


132    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  law  implies  that  the  servant  acts  under  and  accord- 
ing to  the  instructions  of  the  master.  In  the  case  of 
employer  and  physician  the  very  nature  of  the  physi- 
cian's duties  precludes  the  possibility  of  this  relation, 
as  the  physician  is  bound  to  exercise  knowledge,  skill, 
and  judgment,  and  it  is  because  he  is  capable  of  this 
that  he  is  selected.  It  therefore  follows  that  the  em- 
ployer is  not  responsible  to  his  employees  for  the  man- 
ner in  which  they  are  treated  by  the  physician  or  sur- 
geon whom  he  procures  for  them.*  The  law  does, 
however,  require  that  the  employer  use  reasonable  care 
in  selecting  a  physician  and  surgeon  of  ordinary  skill, 
otherwise  he  might  be  liable  to  his  employee  for  his 
own  negligence  in  making  a  careless  selection,  f 

Nor  is  a  county  or  other  municipal  corporation 
liable  to  a  patient  for  unskillful  or  improper  treat- 
ment by  a  physician  while  in  the  county  hospital  or 
similar  institution.! 

*  A.,  T.,  and  S.  F.  R.  Co.  vs.  Zeiler,  54  Kan.,  340,  88  P.  Rep.,  282; 
O'Briens.  Steamship  Co.,  154  Mass.,  272;  South  Fla.  R.  Co.  vs.  Price, 
32  Fla.,  46,  13  So.,  638;  Richardson  vs.  Carbon  Hill  Coal  Co.,  10 
Wash.,  648,  39  Pac.  Rep.,  95;  Quinn  vs.  Kansas  City,  M.,  and  B.  R. 
Co.,  94  Tenn.,  713,  28  L.  R.  A.,  552,  30  S.  W.  Rep.,  1036 ;  Union  P. 
R.  Co.  vs.  Artist,  60  Fed.  R.,  365,  23  L.  R.  A.,  581 ;  York  vs.  Chicago, 
M.,  and  St.  P.  Ry.  Co.,  98  la.,  544,  67  N.  W.  Rep.,  574;  Clark  vs.  Mis- 
souri P.  R.  Co.,  48  Kan.,  654,  29  Pac.  Rep..  1138;  Pittsburgh,  C.  C, 
and  St.  L.  R.  Co.  vs.  Sullivan,  41  Ind.,  88,  40  N.  E.  Rep.,  138. 

I  Laubheim  vs.  DeK.  N.  S.  Co.,  107  N.  Y.,  228. 

X  Sherboume  vs.  Yuba  Co.,  21  Cal.,  113;  Brown  vs.  Vinalhaven,  65 
Me.,  402;  Summers  vs.  Daviess  Co.,  103  Ind.,  262,  1  West  Rep.,  217. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.    133 

While  the  liability  of  the  physician  to  the  patient 
can  not  properly  be  discussed  under  the  present  chap- 
ter, it  is  thought  pertinent  to  state  that  the  immunity 
of  the  third  parties  in  the  cases  just  referred  to  does 
not  in  any  way  relieve  the  physician  from  his  liability 
to  the  patient.* 

Rights  of  Third  Parties. — Having  examined  those 
cases  in  which  third  parties  are  liable  to  both  the  physi- 
cian and  patient,  we  will  now  pass  to  a  consideration  of 
the  rights  of  third  parties. 

Rights  of  Husband. — It  has  been  observed  that  the 
husband  is  subject  to  certain  liabilities  arising  from  the 
treatment  of  his  wife ;  it  is  therefore  natural  to  suppose 
that  he  has  certain  rights  in  the  premises  which  should 
be  respected. 

In  case  it  becomes  necessary  to  operate  upon  a  pa- 
tient, is  it  necessary  to  first  obtain  consent  from  her 
husband?  In  the  case  of  M'Clallen  vs.  Adams  a  hus- 
band placed  his  wife  under  the  care  of  a  physician  whom 
he  knew,  at  a  distance  from  his  own  residence,  for  treat- 
ment for  a  scrofulous  tumor  of  the  breast;  while  the 
wife  was  under  the  doctor's  care  a  cancerous  condition 
developed,  and  the  physician  without  the  husband's 
knowledge  amputated  the  breast,  from  which  operation 
the  patient  never  recovered.    The  court  was  of  the  opin- 

*  DuBois  vs.  Decker,  130  N.  Y.,  325,  14  L.  R.  A.,  429.   See  Ch.  VII. 


134   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ion  that  the  husband,  in  placing  his  wife  in  the  care  of 
the  physician  under  the  circumstances  stated,  "  implied- 
ly requested  him  to  do  all  such  acts,  and  adopt  such 
course  of  treatment  and  operations,  as  in  his  judgment 
would  be  most  likely  to  effect  her  ultimate  cure  and 
recovery,  with  the  assent  of  the  wife,  and  therefore  that 
the  operation  in  question  was  within  the  scope  of  the 
authority  given  him."  The  court,  commenting  upon 
the  case,  further  said:  "Although  it  might  have  been 
an  act  of  prudence  in  the  [physician]  to  give  the  [hus- 
band] notice  of  the  situation  of  the  wife,  and  of  his 
intention  to  perform  a  dangerous  operation,  yet  we 
think  he  might  safely  trust  to  the  judgment  of  the 
wife,  to  give  her  husband  notice  from  time  to  time 
of  her  situation  and  intentions,  and  that  it  was  not 
necessary,  in  point  of  law,  for  the  [physician]  to 
give  such  notice,  or  to  have  any  new  request  or  au- 
thority." * 

The  court,  in  the  case  of  State,  etc.,  vs.  Housekeeper 
et  al.,  decided  in  1888,  in  considering  a  similar  state  of 
facts,  said :  *'  The  consent  of  the  Mdfe,  not  that  of  the 
husband,  was  necessary.  The  professional  men  whom 
she  had  called  in  and  consulted  were  the  proper  persons 
to  determine  what  ought  to  be  done.  They  could  not,  of 
course,  compel  her  to  submit  to  an  operation,  but  if 

*  M'Clallen  vs.  Adams,  19  Pick,  333. 


RIGHTS  AND  LIABILITIES  OF  THIRD   PARTIES.  135 

she  voluntarily  submitted  to  its  performance,  her  con- 
sent will  be  presumed,  unless  she  was  the  victim  of  a 
false  and  fraudulent  misrepresentation,  which  is  a  ma- 
terial fact  to  be  established  by  proof."  In  this  case  the 
evidence  showed  that  the  wife  had  been  afflicted  with  a 
lump  in  her  right  breast,  supposed  to  be  an  innocent 
tumor,  but  afterward  ascertained  to  be  a  cancer.  The 
physicians  operated  for  cancer,  removing  the  entire 
breast.  The  husband  testified  that  he  supposed  the  oper- 
ation was  for  the  purpose  of  removing  a  tumor,  and 
that  he  would  never  have  consented  to  the  operation 
which  was  performed.  The  evidence  did  not  show 
whether  the  wife  was  informed  of  the  character  of  the 
operation  to  be  performed,  but  the  court  stated  the  law 
relative  to  this  question  as  follows :  "  The  party  who 
allows  a  surgical  operation  to  be  performed  is  presumed 
to  have  employed  the  surgeon  for  that  particular  pur- 
pose." * 

It  is  a  rule  as  old  as  the  common  law  itself  that 
the  husband  is  entitled  to  the  society  and  services  of  his 
wife ;  if,  therefore,  the  physician,  through  improper  care 
or  inattention,  prolongs  the  sickness  of  the  wife,  he  can 
be  held  to  respond  in  damages  to  the  husband  for  the 
value  of  his  wife's  society  and  services  during  such  peri- 


*  State,  etc.,  vs.  Housekeeper  ci  al.,  70  Md.,  162,  16  Atl.  Rep.,  382. 
As  to  necessity  of  securing  consent  before  operating,  sec  post,  p.  31S. 


136    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

od  of  prolonged  sickness,  also  for  the  expense  of  caring 
for  her  during  this  period.* 

And,  finally,  when  the  wife  dies,  the  hnsband  is  en- 
titled to  have  her  body  in  the  condition  in  which  the 
breath  leaves  it  for  the  purpose  of  interment.  Should 
the  physician  violate  this  right  and  perform  an  autopsy 
upon  the  body  without  the  consent  of  the  husband,  it 
seems  well  settled  that  he  can  be  held  to  respond  in 
damages  to  the  husband;  the  amount  of  damages  would 
be  assessed  by  the  jury,  and  the  principal  element  upon 
which  it  would  be  based  would  be  the  injury  to  the  hus- 
band's feelings,  f 

This  right  to  the  body  of  the  deceased  is  primarily 
in  the  surviving  husband  or  wife ;  if  there  is  no  surviv- 
ing husband  or  wife  it  is  in  the  next  of  kin.| 

Thus  a  father  who  places  his  child  in  the  care  of  a 
physician  has  the  right  to  immediate  possession  of  the 
body  upon  the  child's  death,  and  can  maintain  an  action 
against  the  physician  for  any  violation  of  this  right.** 

This  proposition  is,  of  course,  to  be  understood  with 
the  qualification  that,  where  the  circumstances  of  tho 
death  are  such  as  to  render  a  coroner's  inquest  necessary, 

*  Nixon  vs.  Ludlam,  50  111.  App.,  2*73 ;  Stone  vs.  Evans,  32  Minn., 
243,  20  N.  W.,  149. 

+  Foley  vs.  Phelps,  37  N.  Y.  Supp.,  471,  1  App.  Div.,  551. 
X  Larson  vs.  Chase,  47  Minn.,  307.     For  law  respecting  the  right  to 
perform  an  autopsy,  see  post,  p.  315. 

*  Burney  vs.  Children's  Hospital,  169  Mass.,  57,  47  X.  E.  Rep.,  401. 


RIGHTS  AND  LIABILITIES  OF  THIRD  PARTIES.  13^ 

the  physician  who  performs  the  autopsy  under  the  coro- 
ner's orders  is  protected  in  so  doing  if  he  treats  the  body 
with  ordinary  decency  and  does  not  wantonly  or  unne- 
cessarily disfigure  it.* 

Right  of  Third  Parties  Generally. — It  has  been  ob- 
served that  the  doctor's  duty  requires  him  to  sometimes 
destroy  property  which  is  infected  with  any  contagious 
disease;  but  when  such  property  belongs  to  third  par- 
ties, have  they  any  recourse  against  the  physician  who 
ordered  its  destruction? 

A  case  occurred  in  Maine  in  1874  f  in  which  the 
owner  of  a  house  in  which  small-pox  patients  had  been, 
sued  the  physician  for  ordering  the  paper  removed  from 
the  wall,  the  plaintifE  claiming  that  its  removal  was 
not  necessary  to  properly  disinfect.  The  trial  court  gave 
the  plaintiil  a  judgment  of  thirty-five  dollars  against 
the  physician,  but  the  supreme  court  sent  the  case  back 
with  an  opinion  of  law  which  relieved  the  physician 
from  all  liability  in  the  premises.  In  this  case  the  court, 
speaking  through  Justice  Walton,  said:  "When  the 
small-pox  or  any  other  contagious  disease  exists  in  any 
town  or  city  the  law  demands  the  utmost  vigilance  to 
prevent  its  spread.  .  .  . 

"To  accomplish  this  object,  persons  may  be  seized 

and  restrained  of  their  liberty  or  ordered  to  leave  the 

State;  private  houses  may  be  converted  into  hospitals 

*  Young  vs.  College  of  P.  and  S ,  81  Md.,  868,  32  Atl.  Rep.,  177, 
f  Seavey  vs.  Preble,  64  Me  ,  120. ' 


138    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

and  made  subject  to  hospital  regulations;  buildings  may 
be  broken  open  and  infected  articles  seized  and  de- 
stroyed, and  many  other  things  done  which,  under  ordi- 
nary circumstances,  would  be  considered  a  gross  outrage 
upon  the  rights  of  persons  and  property.  This  is  allowed 
upon  the  same  principle  that  houses  are  allowed  to  be 
torn  down  to  stop  a  conflagration.  Salus  populi  est  su- 
prema  lex — the  safety  of  the  people  is  the  supreme  law 
— is  the  governing  principle  in  this  ease. 

"  Where  the  public  health  and  human  life  are  con- 
cerned the  law  requires  the  highest  degree  of  care.  It 
will  not  allow  of  experiments  to  see  if  a  less  degree  of 
care  will  not  answer.  The  keeper  of  a  furious  dog  or 
mad  bull  is  not  allowed  to  let  them  go  at  large  to  see 
whether  they  will  bite  or  gore  his  neighbor's  children 
.  .  .  nor  is  one  using  a  steam  engine  to  see  how  much 
steam  he  can  possibly  put  on  without  bursting  the  boiler. 
N"o  more  are  those  in  charge  of  small-pox  patients  al- 
lowed to  experiment  to  see  how  little  cleansing  will  an- 
swer; how  much  paper  spit  upon  and  bedaubed  with 
small-pox  virus  it  will  do  to  leave  upon  the  walls  of  the 
rooms  where  the  patients  have  been  confined.  The  law 
will  not  tolerate  such  experiments.  It  demands  the  ex- 
ercise of  all  possible  care.  In  all  cases  of  doubt  the  safest 
course  should  be  pursued,  remembering  that  it  is  in- 
finitely better  to  do  too  much  than  to  run  the  risk  of 
doing  too  little." 


RIGHTS  AND   LIABILITIES  OF  THIRD   PARTIES.  I39 

It  will  seem  conclusive  after  reading  this  forcible 
opinion  that  third  parties  have  no  right  whatever  to  in- 
terfere with  the  physician  in  taking  such  reasonable 
steps  as  he  deems  necessary  for  perfect  disinfection,  and 
that  he  can  only  be  held  responsible  for  or  restrained 
from  wholly  unnecessary  or  willful  destruction. 

A  peculiar  case  touching  the  liability  of  a  physician 
to  a  third  party  recently  arose  in  Massachusetts.  A 
physician  was  employed  by  a  father  to  examine  a  young 
man,  who  was  engaged  to  be  married  to  his  daughter,  to 
determine  whether  or  not  he  was  affected  with  a  venereal 
disease.  The  young  man  had  accidentally  injured  him- 
self, and  the  physician,  after  making  the  examination, 
reported  that  he  was  suffering  from  gonorrhoea,  by  vir- 
tue of  which  statement  the  engagement  was  broken  off. 

The  injured  man  sued  the  physician,  and  the  su- 
preme court  held  that  if  he  did  not  possess  ordinary 
skill  and  learning,  and  use  ordinary  diligence  and  care 
in  their  exercise,  he  was  liable  to  the  plaintiff,  and 
that  the  breaking  of  the  plaintiff's  marriage  engage- 
ment in  consequence  of  the  wrong  diagnosis  was  not  too 
remote  a  damage  to  sustain  the  action.*  Whether  or  not 
he  did  possess  ordinary  skill  and  learning  and  exercise 
proper  care  and  skill  in  conducting  the  examination, 
was  a  question  for  the  jury  to  determine  from  the  evi- 
dence adduced  at  the  trial. 

*  Harriott  vs.  Plimpton,  166  Mass.   5S5,  44  N.  E.  Rep.,  992. 
10 


CHAPTER   V. 

EIGHT   TO    CO:SIPEXSATIOX. 

Right  ITsiially  Founded  npon  Implied  Contract  of 
Patient.^-It  has  been  observed  that  a  patient  impliedly 
contracts  with  a  physician,  when  he  engages  his  serv- 
ices or  when  he  receives  the  physician's  professional 
attention,  that  he  will  make  a  reasonable  and  proper 
compensation  therefor.  The  right  of  the  physician  to 
his  fee  is  probably  governed  in  nineteen  out  of  twenty 
cases  by  this  implied  contract.  Occasionally,  however, 
there  is  a  special  contract  superseding  the  one  implied 
by  law,  and,  probably  with  still  greater  frequency, 
there  are  peculiar  circumstances  attending  the  case 
which  materially  affect  the  contract  as  ordinarily  im- 
plied. The  implied  promise  of  payment  may  arise  from 
either  one  of  two  circumstances :  First,  from  the  em- 
ployment of  the  physician  to  attend  the  patient,  or 
second,  from  the  mere  attendance  of  the  physician  and 
the  acceptance  of  his  services,  even  though  he  is  not 
expressly  employed. 

From  the  fact  that  the  mere  employment  of  the 

phj^sician  creates  a  liability  for  the  payment  of  his  fee, 
140 


RIGHT   TO  COMPENSATION.  141 

it  follows  that  if  a  physician  is  sent  for  to  attend  a 
certain  patient,  and  upon  promptly  responding  to  the 
call  the  physician  is  informed  that  another  physician 
is  in  attendance,  or  that  the  trouble  is  passed,  or  that 
for  any  other  reason  his  services  are  not  required,  he 
will,  nevertheless,  be  entitled  to  the  ordinary  and  rea- 
sonable compensation  for  making  the  call.* 

The  mere  acceptance  of  the  services  of  a  physician 
being  sufficient  to  bind  the  patient  to  pay  therefor  is 
another  sufficient  reason  for  the  rule  of  law  heretofore 
observed,  that  the  physician  is  entitled  to  compensation 
not  only  for  the  first  visit  made  at  the  patient's  express 
request,  but  also  for  all  subsequent  visits  which  the  pa- 
tient's condition  requires. 

Right  to  Compensation  for  Services  of  Student. — 
The  physician  is  entitled  to  a  fee  for  services  rendered  by 
students  who  attend  upon  his  patients  under  his  direc- 
tions, and  the  fact  that  such  students  are  not  legally 
qualified  to  practise  medicine  and  surgery  in  their  own 
names  and  collect  fees  for  such  services  does  not  affect 
this  right,  f  And  so,  where  a  physician  employs  another 
physician  to  assist  him,  he  is  entitled  to  recover  for  the 
services  of  such  assistant.  J 

*  See  Bartlett  vs.  Sparkman,  95  Mo ,  136 ;  Wheatley  vs.  City  of  Cov- 
ington, 11  Bush,  18. 

\  People  vs.  Monroe,  4  Wendell,  200. 

I  Jay  County  Commiss.  vs.  Brewington,  74  Ind  ,  7. 


142    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Right  of  Irregular  Practitioners  to  Recover  Fees. — 

One  practising  an  irregular  branch  of  medicine,  such 
as  Christian  Science,  spiritualism,  or  the  like,  if  not 
prohibited  so  to  do  by  the  law  of  his  State,  is  entitled 
to  fees  for  such  services.  In  the  case  of  Wheeler  vs. 
Sawyer,  the  defense  interposed  was  "that  the  so-called 

*  Christian  Science '  is  a  delusion ;  that  its  principles 
and  methods  are  absurd;  that  its  professors  are  charla- 
tans; that  no  patient  can  possibly  be  benefited  by  their 
treatment."  The  court  said,  "We  think  this  all  im- 
material.     We   are   not   required   here   to   investigate 

*  Christian  Science.'  The  patient  chose  that  treat- 
ment, and  received  it,  and  promised  to  pay  for  it.  There 
is  nothing  unlawful  or  immoral  in  such  a  contract.  Its 
wisdom  or  folly  is  for  the  parties,  not  the  court,  to  de- 
termine." * 

The  question  whether  or  not  a  physician  who  has 
not  fully  complied  with  the  requirements  of  the  law  can 
recover  his  fees  is  treated  at  length  in  the  following 
chapter. 

Sunday  Contracts  Valid. — The  contract  of  the  physi- 
cian being  construed  to  be  one  of  necessity  and  charity, 
comes  within  the  exception  provided  for  by  the  statutes, 
which  declare  all  work  done  and  contracts  entered  into 


*  Wheeler  vs.  Sawyer  (Me.),  15  A.  Rep.,  67,  6  N.  Eng.  Rep.,  826. 
See,  however,  p.  88. 


RIGHT  TO  COMPENSATION.  143 

on  Sunday  to  be  unlawful,  and  therefore  the  physician 
is  entitled  to  his  regular  fees  for  medical  services  ren- 
dered on  that  day.* 

Amount  or  Rate  of  Fee  Collectible. — The  amount 
of  fee  to  which  a  physician  is  entitled  is  not  a  question 
of  law,  but  is  rather  one  of  fact,  and  is  determined  by 
the  customs  of  the  locality  and  by  the  circumstances  of 
the  particular  case.  In  many  localities  one  dollar  is  the 
regular  fee  for  making  an  ordinary  day  call,  and  in  such 
localities  the  physician  would  not  be  entitled  to  collect  a 
larger  fee  for  an  ordinary  day  visit  without  a  special  un- 
derstanding, for  customs  of  this  sort  may  assume  the 
force  and  effect  of  unwritten  laws;  in  other  localities 
custom  allows  a  larger  fee.  It  is  presumed,  however,  that 
the  rate  of  fees  is  based  upon  the  condition  existing  in 
the  particular  locality,  and  that  a  careful  examination 
and  comparison  of  the  rates  of  fees  and  of  the  conditions 
of  their  respective  localities  will  show  a  wise  and  equita- 
ble adjustment  of  the  question  throughout  the  country. 
What  constitutes  a  visit  may  also  be  regulated  by  custom. 
If  a  visit  is  required  to  be  prolonged  beyond  a  certain 
period,  custom  may  establish  the  practice  of  charging 
extra  for  all  time  expended  beyond  the  limit  fixed,  or 
a  physician  may  establish  such  a  custom  for  himself 


*  Smith  vfi.  WatGon,  14  Vt,  332;  Aldiich  vs.  Bkckstone,  128  Mass., 
148.     See  p.  19. 


144:   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

by  generally  announcing  it  among  his  patients.  His 
right  to  the  added  compensation  would  at  first,  however, 
be  dependent  upon  the  announcement  of  his  special 
terms  to  the  particular  patient,  and  this  announcement 
would,  if  acted  upon,  be  equivalent  to  a  special  contract 
for  such  increased  fee.  But  after  the  custom  became 
generally  known  and  recognized  no  special  notice  would 
be  required  to  fix  the  liability  upon  the  patient. 

The  fees  for  performing  operations  are  also  subject, 
to  a  certain  extent,  to  customs;  there  are,  however, 
many  operations  of  an  unusual  character  which  from 
the  nature  of  the  case  can  not  be  provided  for  by  cus- 
toms. Many  operations  being  of  a  difficult  character, 
it  becomes  advisable  often  to  acquire  the  services  of  a 
surgeon  specially  skilled  in  that  line  of  work,  or  specially 
qualified  to  perform  the  particular  class  or  kind  of 
operation.  The  services  of  such  men  are  not,  and  can  not 
be,  subject  to  the  customs  prescribing  the  rate  of  fee 
in  the  particular  locality  in  which  the  services  happen  to 
be  rendered.  Also,  a  physician  who  is  called  from  a  dis- 
tance because  of  his  special  fitness,  or  for  other  reasons, 
may  collect  for  such  services,  basing  the  amount  of  his 
fee  upon  the  rate  customarily  charged  by^  him  and  not 
upon  the  rates  charged  at  the  place  where  he  visits  the 
patient. 

Where,  liowever,  a  physician  is  called  from  a  distance 
to  see  a  person  either  on  business  or  social  matters,  and 


RIGHT  TO  COMPENSATION,  I45 

while  there  attends  him  professionally,  he  is  not  en- 
titled to  the  same  compensation  as  though  he  were  sum- 
moned to  attend  him  professionally;  in  the  latter  case 
he  would  be  entitled  to  a  greater  compensation  based 
upon  the  loss  or  abandonment  of  home  practice,  while 
in  the  former  case  he  would  merely  be  entitled  to  a 
compensation  for  the  time  spent  in  attending  the  sick 
person  professionally,  and  perhaps  for  the  expenses  of 
the  trip.  The  allowance  or  disallowance  of  the  last 
item  would  depend  very  much  upon  the  circumstances 
of  the  case.* 

Upon  the  same  principle  it  has  been  held  that  where 
a  physician  lives  at  his  brother's  house  as  a  member  of 
the  family,  he  is  not  entitled  to  compensation  for  un- 
interrupted medical  attendance  and  services  during  the 
entire  time  of  the  brother's  sickness.  In  this  case  Jus- 
tice Ilanna  said :  "  The  testimony  shows  that  the  claim- 
ant, while  he  attended  his  brother,  the  decedent,  did 
not  devote  all  his  time  and  attention  to  his  patient,  but 
that  he  acted  as  a  member  of  the  family,  sleeping  and 
taking  his  meals  in  the  house,  going  out  and  return- 
ing at  his  pleasure;  and  though,  no  doubt,  he  rendered 
many  kind,  thoughtful,  and  affectionate  attentions  to 
his  suffering  brother,  yet  they  formed  no  part  of  his 
duties  as  a  physician,  and  can  not  after  the  death  of  that 

*  Succession  of  Dickey,  41  La.  Ann.,  1010,  6  So.  Rep.,  798. 


146    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

brother  be  made  the  basis  of  pecuniary  compensation. 
The  most  the  claimant  is  entitled  to  is  to  be  paid  for 
the  professional  visits  made,  and  the  number  of  opera- 
tions performed  by  him,  at  the  usual  rate  of  practising 
physicians."  * 

The  supreme  court  of  Louisiana  has  held  that  a 
physician's  charges  against  an  estate  for  services  ren- 
dered to  the  deceased  are  not  to  be  based  entirely  upon 
the  physician's  skill  and  the  character  of  the  services, 
but  that  the  ability  of  the  estate  to  pay  for  such  services 
should  be  considered  in  determining  the  amount  of  the 
fee.  In  this  case  the  deceased  had  stricture  of  the 
oesophagus,  probably  cancerous  in  its  nature.  He  could 
not  be  fed  through  the  mouth  and  artificial  means  had 
to  be  resorted  to.  The  purpose  was  for  a  time  accom- 
plished by  inserting  a  flexible  tube  through  which 
liquid  nourishment  was  given  him,  but  this  means  soon 
failed,  the  stricture  becoming  complete  and  rigid.  The 
physician  then  resorted  to  the  operation  of  gastrotomy, 
after  which  the  patient  survived  twenty-one  days,  hav- 
ing been  under  the  care  of  the  physician  for  a  period 
of  sixty  days.  The  physician  rendered  a  bill  of  $2,500. 
The  supreme  court,  in  considering  the  amount  of  the 
fee,  said :  "  The  physician  should  be  paid,  but  the  charge 
is  disproportionate  to  the  man's  estate  and  condition 

*  In  re  Moffett  Est.  (Pa.),  32  Leg  Int ,  218. 


RIGHT  TO  COMPENSATION.  I47 

in  life.    His  estate  is  inventoried  at  $8,705.    The  lower 
court  allowed  $500.     We  increase  it  to  $1,000.* 

'  A  case  is  reported  in  the  Pacific  Record  of  Medicine 
and  Surgery  f  in  which  not  only  the  character  of  the 
operation  performed,  but  the  ruling  of  the  court  upon 
the  effect  of  the  value  of  the  patient's  estate  upon  the 
amount  of  fees  recoverable  therefor,  are  strikingly  simi- 
lar to  those  in  the  above  case.  Here  an  operation  of 
gastfotomy  was  performed  upon  a  patient  who  was  sev- 
enty-two years  of  age,  and  who  was  afELicted  with  cancer 
of  the  oesophagus.  The  physician  charged  $1,500  for 
the  operation,  $100  each  for  night  detentions,  and  $100 
each  for  visits,  his  bill  amounting  in  all  to  $9,200. 
Upon  trial,  the  physician's  lawyer,  against  the  strenu- 
ous objection  of  the  defendants,  introduced  in  evi- 
dence the  inventory  of  the  decedent's  estate,  show- 
ing it  to  be  appraised  at  $250,000.  The  only  question 
involved  in  the  trial  was  the  one  of  the  amount  to  which 
the  plaintiff  was  entitled,  the  executors  having  previous 
to  the  trial  offered  to  pay  $2,750  in  full  of  the  claim, 
and  the  plaintiff  having  offered  to  accept  $4,000.  The 
trial  judge,  after  instructing  the  jury  at  some  length 
upon  the  conditions  they  were  to  regard  and  the  effect 
they  were  to  give  the  evidence  of  the  experts  in  fixing 


*  Czarnowski  vs.  Succession  of  Zeyer,  35  La.  Ann.,  796. 

f  Padfic  Record  of  Medicine  and  Surgery,  April  15,  1899,  p.  298. 


148    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  amount  of  the  fees,  referred  to  the  importance 
which  should  be  attached  to  the  value  of  the  patient's 
estate  in  the  following  words : 

"  While  you  may  take  into  consideration,  in  estimat- 
ing the  value  of  the  plaintiff's  services,  all  the  circum- 
stances surrounding  such  services,  the  time  consumed 
in  the  operation  and  in  attendance  upon  Mr.  Goldberg, 
the  responsibility  involved  in  the  operation,  and  in  this 
connection  you  may  consider  the  financial  situation  of 
the  patient  and  the  value  of  his  estate,  the  reputation 
and  skill  of  the  plaintiff,  as  well  as  the  income  which 
he  derives  from  his  practice,  the  number  of  visits  and 
duration  as  well  as  the  loss  of  time  incurred  by  the 
plaintiff  in  traveling  back  and  forth,  the  nature  and 
extent  of  the  services,  and  the  benefit  to  the  deceased, 
yet  this  does  not  mean  that  you  may  arbitrarily  fix  any 
sum  you  may  see  fit  as  the  amount  to  be  recovered  by 
the  plaintiff  in  this  case.  He  is  entitled  to  recover  only 
such  a  sum  as  will  be  a  reasonable  compensation  for  his 
services  rendered  the  decedent  considering  all  the  cir- 
cumstances. The  doctrine  known  to  maritime  law  as 
salvage  does  not  apply  to  cases  like  the  one  at  bar. 
That  is  to  say,  while  you  may  take  into  consideration 
the  value  of  the  estate  as  one  of  the  elements  to  deter- 
mine the  value  of  plaintiff's  services,  yet  that  element 
is  not  controlling.  In  other  words,  the  plaintiff  is  only 
entitled  to  recover  the  reasonable  value  of  his  services 


RIGHT  TO  COMPENSATION.  I49 

rendered  to  the  decedent  prior  to  his  death,  and  for  the 
purpose  of  fixing  and  determining  such  value  you  have 
the  right  to  take  into  consideration  the  other  elements 
mentioned.'"' 

With  these  instructions  the  jury  retired  and  re- 
turned with  a  verdict  for  the  plaintiff  of  $6,500,  which 
itemized,  amounted  to  $1,500  for  the  operation  and  $60 
each  for  the  visits. 

Courts  have,  however,  repeatedly  held  that  the  rate  of 
fees  chargeable  by  physicians  is  in  no  way  affected  or 
altered  by  the  financial  circumstances  of  the  patient. 
This  is  probably  the  law  as  applied  in  suits  between 
physician  and  patient,  but  when  the  claim  is  being  en- 
forced against  the  estate  of  a  deceased  patient,  as  in 
the  above  cases,  then  the  court  may  be  more  disposed  to 
follow  them  as  precedents. 

A  recent  case  which  may  well  illustrate  the  impos- 
sibility of  laying  down  a  fixed  rule  for  the  regulation 
of  professional  fees  in  surgical  cases,  or  cases  requiring 
unusual  or  peculiar  skill  and  ability,  is  that  of  Heintz 
vs.  Cooper.*  In  this  case,  the  patient  had  sustained  a 
compound  fracture  of  the  leg  and  dislocation  of  the 
ankle  joint.  Both  bones  were  broken  and  protruded 
through  the  flesh,  and  six  or  seven  pieces  of  the  bone 
Vere   removed.      The   physician's   services   commenced 

*  Heintz  vs.  Cooper,  4.1  Pac.  Rep.,  360  (Cal.). 


150    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS, 

July  12th  and  continued  through  until  October  13th 
following,  during  which  time  plaintifE  testified  he  made 
about  two  hundred  visits  and  about  seventy  of  these 
were  for  the  purpose  of  dressing  the  wound;  that  five 
dollars  to  ten  dollars  a  visit  when  the  wound  was  dressed, 
and  two  dollars  and  fifty  cents  a  visit  for  all  other  visits, 
was  a  reasonable  charge;  and  that  for  reducing  a  com- 
pound fracture  of  the  leg,  two  hundred  and  fifty  dollars 
to  five  hundred  dollars  was  a  reasonable  compensation. 
On  the  other  hand,  the  professional  evidence  introduced 
by  the  defendant  was  that  five  hundred  dollars  was  a 
reasonable  compensation  for  all  services  rendered  in 
the  case.  The  jury  returned  a  verdict  for  seven  hun- 
dred and  fifty  dollars.  Upon  the  appeal  of  this  case. 
Justice  Haynes  said :  "  It  appeared,  however,  that  in  no 
case  in  Monterey  County  within  the  knowledge  of  the 
medical  witnesses  had  so  large  fees,  in  the  aggregate, 
been  paid  in  case  of  compound  fracture,  though  in  none 
of  the  instances  mentioned  was  the  character  of  the 
fracture  or  the  number  of  visits  stated;  and  it  is  now 
contended  on  behalf  of  appellant  (the  patient)  that 
the  prices  so  paid  in  those  other  cases  in  that  county 
determine  what  is  a  reasonable  compensation  for  plain- 
tiff's services  in  this  case,  or,  as  counsel  stated  it,  *  the 
usual  price  at  the  time  and  place  of  performance  is  th6 
rule.'  The  cases  cited  in  support  of  this  proposition 
relate  to  ordinary  services,  as  to  which  there  is  a  reason- 


RIGHT  TO   COMPENSATION".  151 

ably  uniform  established  rate  of  compensation,  and 
not  to  professional  services,  where  the  skill  and  learning 
of  the  person,  as  well  as  the  almost  infinite  variety 
in  the  character  and  circumstances  of  the  subject 
upon  which  he  devotes  his  services,  precludes  the 
establishment  of  any  fixed  rate  of  compensation 
which  could  be  applied  to  more  than  a  very  re- 
stricted class  of  cases  and  the  more  common  class  of 
services/' 

In  short,  the  amount  of  the  fee  which  a  physician 
and  surgeon  is  entitled  to  charge  is  governed,  in  the 
case  of  ordinary  and  usual  services,  by  the  generally 
recognized  customs  prevailing  at  the  time  and  place 
where  the  services  are  rendered,  or,  if  he  is  called  from  a 
distance  to  perform  such  services,  then  by  the  cus- 
tom prevailing  in  his  locality.  But  in  ease  of  unusual 
or  peculiar  services  no  such  general  custom  will  rule; 
all  of  the  attendant  circumstances  must  be  taken  into 
consideration  and  a  fair  and  equitable  amount  thereby 
determined  upon.  A  more  definite  and  certain  rule 
than  the  above  can  not  be  well  given. 

Consultant's  Fee. — In  case  of  consultation,  the  cus- 
tom seems  so  well  established,  that  the  patient  will  pay 
the  fee  of  the  consultant,  that  an  agreement  between  the 
patient  and  attending  physician  that  the  physician  will 
pay  the  consultant's  fees  does  not  release  the  patient 
from  paying   such  fees   unless  the   consultant   is   in- 


152    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

formed  of  such  arrangement  before  the  services  are 
rendered.* 

Where,  however,  an  attending  physician  takes  an- 
other physician  to  a  patient's  house  to  convince  the  pa- 
tient that  he  is  doing  all  that  can  he  done,  and  the 
physician  so  called  in  does  nothing  whatever  for  the 
patient,  and  is  not,  in  fact,  called  in  at  the  patient's 
instance  or  request,  the  patient  is  under  no  obliga- 
tion to  pay  him  anything,  f  Nor  does  it  necessarily 
follow  where  a  patient  employs  two  physicians,  who, 
in  fact,  meet  at  his  bedside  at  each  call,  that  each 
meeting  will  rank  as  a  consultation.  In  the  matter  of 
Succession  of  Duclos,  the  court  said :  "  As  to  the  pre- 
tension that,  from  the  moment  more  than  one  physician 
is  called  in,  and  attends  regularly  upon  a  case,  every 
visit  made  by  every  physician  employed  takes  rank  as 
a  consultation,  it  can  not  be  listened  to,  even  supposing 
that  the  visits  are  made  at  the  same  hour,  so  that  the 
physicians  actually  meet  at  the  patient's  bedside.  The 
difference  of  the  charge  for  what  is  technically  styled 
a  consultation,  and  for  a  simple  visit,  would  make  it 
ruinous  to  most  patients  and  unreasonably  onerous  to 
all,  to  avail  themselves  of  the  lights  of  more  than  one  of 
the  faculty  in  time  of  need,"  J 

*  Shelton  vs.  Johnson,  40  la.,  84;  Garrey  vs.  Stadler,  67  Wis.,  512. 
See  p.  TY. 

f  Schrader  vs.  Hoover,  87  la.  654,  54  N.  W.  Rep.,  463. 
X  Succession  of  Duclos,  11  La.  Ann.,  406. 


RIGHT  TO  COMPENSATION.  153 

Failure  to  Benefit  Patient  no  Bar  to  Recovery  of 
Compensation. — A  consideration  of  those  things  which 
may  be  urged  as  defeating  the  right  of  the  physician  to 
compensation  brings  us  first  to  the  effect  of  the  failure 
by  the  physician  to  benefit  his  patient.  The  contract 
of  .the  physician  that  he  is  possessed  of  ordinary  skill 
and  knowledge,  and  will  use  due  care  and  diligence  in 
exercising  them,  does  not  guarantee  his  ability  to  effect 
a  cure  in  all  cases,  nor  indeed  is  it  an  assurance  that 
his  services  will  even  be  beneficial.  If,  therefore,  the 
test  of  a  successful  treatment  is  to  be  considered  a  pre- 
requisite to  the  physician's  right  to  recover  for  such 
services,  it  is  patent  that  a  new  requirement  is  inter- 
posed by  the  law.  This,  however,  is  not  the  case ;  it  has 
been  laid  down  as  law  that  if  the  physician  possesses 
ordinary  knowledge  and  skill  and  uses  reasonable  and 
due  care  in  their  exercise,  he  does  all  the  law  requires 
of  him ;  this  proposition  is  correct,  and  is  therefore  ap- 
plied as  a  test  of  the  physician's  right  to  recover  regard- 
less of  the  benefit  or  injury  following  his  treatment. 
The  court  well  stated  the  law  in  a  Pennsylvania  case 
in  the  following  words :  "  The  fact  that  a  professional 
man  does  not  succeed  in  accomplishing  that  for  which 
he  is  employed,  can  not  affect  his  right  to  recover  for 
services  rendered,  unless  actual  want  of  skill  be  spe- 
cifically shown."  * 

*  Teedman  vs.  Loewengrund  (Pa.),  2  W.  N.  C,  2*72. 


154    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Illustrations. — Whether  or  not  a  physician  has  com- 
plied with  the  requirements  of  the  law  in  a  given  ease 
is  a  question  of  fact  to  be  determined  by  the  jury  by 
the  aid  of  expert  evidence.  In  a  recent  Illinois  case 
the  evidence  showed  that  the  patient  was  thrown  from 
his  buggy  and  his  left  shoulder  joint  dislocated  by  the 
fall.  On  the  following  day  he  called  upon  the  doctor, 
who,  the  evidence  tends  to  show,  properly  reduced  the 
dislocation.  In  three  or  four  days  he  called  again,  ac- 
cording  to  the  physician's  instructions,  and  the  shoulder 
appeared  to  be  doing  well.  The  patient  was  not  again 
seen  by  the  physician  for  about  forty-five  days,  when 
the  shoulder  was  found  to  be  in  an  ankylosed  condition, 
and  unable  to  be  moved.  On  the  following  day  the  pa- 
tient returned  to  the  doctor's  office  by  appointment ;  the 
doctor  administered  ancesthetics  to  him  and  proceeded  to 
break  up  the  adhesions,  but  in  doing  so  ruptured  the 
axillary  artery.  The  next  day  the  physician  and  patient 
went  to  Chicago,  where  an  eminent  surgeon  performed 
a  surgical  operation  on  him.  He  cut  down  upon  the 
blood-vessel,  cleaned  out  the  cavity,  which  was  filled 
with  blood  clot,  sought  out  the  bleeding  vessel,  tied  it, 
sewed  up  the  wound,  and  dressed  it.  He  testified  that 
the  head  of  the  humerus  was  in  the  socket  where  it 
belonged.  The  patient  never  fully  recovered  from  the 
injury,  and,  as  the  evidence  tends  to  show,  his  arm  is 
stiff  and  the  humerus  out  of  place. 


RIGHT  TO   COMPENSATION.  155 

The  physician  brought  suit  to  recover  his  fee,  and 
the  patient  contested  it  on  the  ground  that  the  disloca- 
tion was  never  in  the  first  instance  reduced,  and  that 
caused  the  ankylosis  and  the  necessity  of  breaking  up 
the  adhesions  from  which  the  subsequent  trouble  re- 
sulted. The  patient  also  contended  that  if  the  shoulder 
had  been  properly  reduced  in  the  first  instance,  and 
ankylosis  had  set  in,  it  was  not  proper  practice  to 
break  up  the  adhesions;  that  he  would  have  got  proper 
motion  in  the  lapse  of  time  without  it.  The  doc- 
tor introduced  the  evidence  of  several  of  the  most  emi- 
nent physicians  of  Chicago,  who  gave  their  opinion  that 
the  treatment  of  the  patient's  wound  was  good  practice 
at  every  step.  Upon  the  advisability  of  breaking  up  the 
adhesions,  one  physician  testified  as  an  expert  witness  as 
follows :  "  Patients  don't  always  get  the  benefits  that 
we  hope  they  will  get  in  cases  where  the  shoulder  has 
been  dislocated,  but  that  advice  was  such  as  a  surgeon 
in  good  practice  would  give  under  the  circumstances." 

The  evidence  also  tended  to  show  that  the  surgical 
operation  necessitated  by  the  rupture  of  the  axillary 
artery  was  the  probable  cause  of  the  shoulder  becoming 
again  dislocated. 

The  jury  concluded  from  the  evidence  that  the  physi- 
cian had  treated  the  patient's  shoulder  in  a  reasonably 
skillful  manner  according  to  the  practice  of  surgeons, 

and  accordingly  gave  him  a  verdict.     The   appellate 
11 


156    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

court  sustained  the  verdict,  and,  in  commenting  on  the 
case,  said:  "A  physician  is  not  an  insurer  of  the  suc- 
cess of  his  treatment,  and  is  entitled  to  pay  for  his 
services  whether  he  succeeds  in  curing  his  patient  or 
not,  provided  he  uses  the  slvill  of  an  ordinarily  skillful 
physician."  * 

In  a  Tennessee  case  of  some  years  ago  an  amputation 
was  performed,  a  large  butcher  knife  and  a  carpenter's 
sash  saw  being  the  surgical  instruments  used.  The  oper- 
ation, however,  appeared  to  have  been  well  performed, 
and  the  patient,  under  a  proper  treatment,  soon  recov- 
ered. The  representative  of  the  patient  contested  the 
collection  of  the  physician's  fee  upon  several  grounds. 
The  court  held  that  the  operation  seemed  to  have  been 
performed  with  a  reasonable  degree  of  skill,  and  accord- 
ingly sustained  the  verdict  of  the  jury  giving  the  physi- 
cian his  fee.  The  supreme  court,  in  commenting  on  the 
case,  said :  "  It  certainly  requires  some  degree  of  skill  in 
anatomy  and  surgery  to  perform  an  operation  of  the 
kind,  and  the  success  that  attended  it,  though  not  con- 
clusive, is  a  circumstance  from  which  the  skill  may  be 
inferred.  The  instruments  employed,  drawn  from  other 
vocations,  not  the  most  congenial  for  the  special  occa- 
sion, were  certainly  unusual  and  extraordinary  for  such 
a  purpose.     But  we  are  not  to  infer  from  this  circum- 

*  Yunker  vs.  Marshall,  65  HI.  App  ,  &&1. 


RIGHT  TO  COMPENSATION.  157 

stance  alone  that  the  surgeons  had  not  sufficient  art  and 
skill  in  the  use  of  them.  Besides,  it  is  possible  that  the 
delay  necessary  to  procure  proper  instruments  might 
have  been  fatal  to  the  patient."  * 

It  does  not  necessarily  follow  that  a  physician  has 
failed  in  performing  his  legal  duty  to  his  patient,  and  is 
therefore  not  entitled  to  compensation,  because  he  has 
mistaken  the  nature  of  his  disease  and  treated  him  for 
an  ailment  from  which  he  is  not  suffering.  In  a  recent 
case  brought  in  New  Jersey  by  a  physician  to  recover 
a  fee,  the  defendant  interposed  the  defense  that  the 
physician  had  prescribed  and  administered  remedies  for 
a  disease  which  he  had  not.  The  trial  justice  instructed 
the  jury  that  this  insistment  of  the  defendant,  even  if 
true,  would  not  prevent  a  recovery;  that  the  question 
was  whether  the  physician  exercised  proper  care  and 
skill  as  a  physician;  that  if  the  jury  should  conclude 
that  the  doctor  was  mistaken  in  the  nature  of  the  de- 
fendant's disease,  they  must  then  go  still  further,  and 
say  that  a  want  of  care  and  skill  was  exhibited.  If  no 
want  of  care  or  skill  appeared,  he  was  entitled  to  a  fair 
compensation,  although  he  fell  into  a  mistake.  This  is 
undoubtedly  a  correct  statement  of  the  law,  and  in 
applying  it  to  a  given  case  it  remains  for  the  jury  to 
determine  whether  or  not,  as  a  matter  of  fact,  the  physi- 

*  Alder  vs.  Buckley,  1  Swan  (Tenn.),  69. 


158    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

cian  has  failed  in  bringing  the  proper  amount  of  knowl- 
edge to  the  case  or  in  exercising  a  reasonable  and  ordi- 
nary degree  of  skill  and  care.* 

Effect  of  Incompetency  or  Neglect  upon  Eight  to 
Recover. — Whether  a  physician's  failure  to  possess  the 
proper  degree  of  learning  and  skill,  or  neglect  to  use 
proper  care  in  their  exercise,  does  ipso  facto  preclude 
him  from  all  right  to  compensation  is  a  question  upon 
which  there  is  a  direct  conflict  of  authority. 

The  courts  of  New  York  hold  that  such  failure  on 
the  part  of  the  physician  does  defeat  all  right  to  com- 
pensation; and  as  a  corollary  to  this  proposition  they 
hold  that  a  judgment  obtained  in  a  suit  for  the  value 
of  services  in  a  given  case  conclusively  establishes  the 
propriety  of  the  physician's  treatment  in  that  case,  and 
that  an  action  for  malpractice  can  not  afterward  be 
based  upon  the  same  case.f  The  supreme  court  of 
Maine  expresses  itself  in  harmony  with  the  New  York 
courts  and  this  proposition  when  it  says :  "  The  same 
facts  which  would  authorize  a  recovery  for  malpractice 
would  constitute  a  defense  in  a  suit  for  professional 
services."  J 

In  a  later  case,  in  Wisconsin,  the  court  repudiated 

*  Eli  vs.  Wilbur,  49  N.  J.  L.,  685. 

•f  Bellinger  vs.  Craigue,  31  Barb.,  534;  Gates  vs.  Preston,  41  N,  T., 
113. 

X  Patten  vs.  Wiggin,  51  Me.,  594. 


RIGHT   TO   COMPENSATION.  159 

this  doctrine,  and  held  that  the  physician's  claim  for 
fees  and  the  patient's  claim  for  damages  resulting  from 
malpractice  were  two  separate  and  distinct  claims.* 
The  doctrine  laid  down  by  the  supreme  court  of  Wis- 
consin has  been  approved  and  followed  by  a  recent  case 
in  Iowa.  The  court  in  that  case  says :  "  It  does  not 
necessarily  follow  that  because  a  physician  or  surgeon 
may  be  guilty  of  negligence,  which  causes  some  incon- 
sequential or  inconsiderable  injury,  he  is  to  be  deprived 
of  all  compensation  for  his  services  on  account  thereof. 
Whether  he  shall  lose  the  value  of  his  services  depends 
upon  the  amount  of  damages  suffered  by  reason  of  his 
neglect  to  perform  his  duty.  No  penalty  beyond  the 
amount  of  the  actual  damages  sustained  is  to  be  visited 
upon  him  because  of  his  negligence  or  want  of  skill."  f 

The  latter  doctrine  is  thought  to  be  the  better  law, 
and  the  Iowa  and  Wisconsin  cases  will  probably  be  fol- 
lowed as  precedents  by  the  courts  of  those  States  which 
are  not  already  committed  to  the  contrary  doctrine. 

Rights  under  Contract  "No  Cure,  No  Pay."— The 
contract  of  "  no  cure,  no  pay  "  is  probably  one  which  is 
not  very  frequently  entered  into  by  the  most  reputable 
class  of  the  medical  profession,  although  there  is,  at 
least,  no  legal  reason  why  it  should  reflect  any  suspi- 


*  Ressequie  vs.  Byers,  52  Wis.,  651. 

f  Whitesell  vs.  Hill,  101  la.  629,  66  N.  W.  Rep.,  894. 


160    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

cion  of  discredit  upon  the  physician  who  is  a  party  to  it. 
When  a  physician  agrees  to  such  an  arrangement,  and 
there  is  no  specific  price  fixed  as  the  compensation  for 
performing  a  cure,  the  physician  will  be  entitled  to  the 
reasonable  and  usual  sum  for  performing  such  services. 
But  before  he  is  entitled  to  any  compensation  what- 
ever he  is  bound  to  show  that  he  has  fulfilled  his  agree- 
ment and  effected  a  cure.  A  phj'sician  undertook  the 
treatment  of  a  patient  upon  the  plan  under  considera- 
tion, and  soon  afterward,  fearing  that  the  patient  was 
financially  irresponsible,  persuaded  the  patient's  son  of 
the  propriety  of  securing  the  payment  by  his  own  writ- 
ten obligation,  whereupon  the  son  gave  the  doctor  a 
memorandum  reading  as  follows :  "  I  hereby  agree  that 
I  will  be  holden  to  Dr.  J.  S.  for  the  payment  of  his 
bill  for  medicine  and  attendance  upon  my  father  and 
his  wife  " — this  agreement  of  the  son,  while  positive  in 
form,  was  subsequent  in  time  to  the  original  agreement 
of  the  physician,  the  basis  of  which  was  "no  cure,  no 
pay,"  and  was  therefore  held  by  the  court  to  be  collat- 
eral to  it,  and  the  physician  was  accordingly  not  per- 
mitted to  collect  upon  the  written  agreement  without 
first  showing  that  he  had  effected  a  cure.* 

When  a  patient  enters  into  an  agreement  with  a 
physician  to  be  treated  upon  the  basis  of  "  no  cure, 

*  Smith  vs.  Hyde,  19  Vermont,  54. 


RIGHT   TO  COMPENSATION.  161 

no  pay,"  he  is  bound  bj^  such  agreement  to  submit  to 
all  reasonable  treatment  prescribed  for  such  a  time 
as  may  be  reasonably  calculated  necessary  to  effect 
the  cure.  Should  the  patient  refuse  to  do  this,  thus 
rendering  it  impossible  for  the  physician  to  com- 
plete the  cure  and  reap  the  benefit  of  his  skill  and  labor, 
he  is  entitled,  upon  showing  such  facts,  to  receive  com- 
pensation without  performing  any  further  services. 
The  amount  of  compensation  to  which  he  would  be  en- 
titled would  depend  upon  the  terms  of  the  contract.  If 
the  contract  fixed  a  specific  amount  as  the  price  of  suc- 
cessful treatment,  he  would  be  entitled  to  receive  that 
amount  at  once;  but  if  the  contract  was  silent  as  to  the 
amount  of  compensation,  he  would  be  entitled  to  a  rea- 
sonable and  usual  fee  for  the  services  already  rendered. 
The  patient  might,  however,  in  the  latter  case,  for  the 
purpose  of  proving  the  services  to  be  without  value, 
introduce  evidence  to  show  that  the  treatment  prescribed 
was  not  calculated  to  produce  beneficial  results,  and  that 
the  medicine  used  was  worthless  and  possessed  no  effi- 
cacy in  producing  the  results  desired;  and  for  the  pur- 
pose of  proving  this  the  physician  may  be  required  to 
testify  as  to  the  ingredients  of  the  medicine  used,  even 
though  it  be  a  secret  preparation  of  his  own.* 

A  Tennessee  case  of  some  years  ago,  based  upon  a 

*  Jonas  vs.  King,  81  Ala  ,  285. 


162    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

contract  of  the  character  in  consideration,  was  tried, 
which  somewhat  amusingly  illustrates  the  predilection 
of  a  certain  class  of  laymen  to  avoid  the  payment  of  a 
professional  bill  whenever  possible. 

In  this  case  a  physician  contracted  with  an  habitual 
drunkard  to  cure  him  of  his  unfortunate  affliction  in 
consideration  of  the  payment  of  five  hundred  dollars. 

The  treatment  seems  to  have  been  successful  to 
such  an  extent  that  tbe  patient,  after  using  the  medi- 
cine prescribed,  quit  his  habits  of  intoxication,  and  told 
his  friends  that  he  had  lost  his  appetite  for  ardent  spir- 
its, but  that  he  thought  he  could  again  acquire  his 
appetite  for  spirits  by  beginning  with  cider  or  wine. 
He  continued  sober  for  about  nine  months  and  then  re- 
turned to  his  habits  of  intoxication.  How  he  acquired 
the  appetite  again  is  not  shown. 

The  question  of  whether  or  not  drunkenness  is  a  dis- 
ease that  can  be  cured  by  medical  skill  was  interposed; 
the  jury  was  instructed  that  if  the  physician  was  en- 
titled to  recover  they  must  find  it  so  to  be,  and  that  the 
physician  had  not  only  suppressed  or  suspended  the  appe- 
tite for  a  season  during  the  operation  of  the  medicine, 
but  had  so  far  removed  it  that  it  would  not  return 
unless  the  patient  indulged  in  such  a  manner  as  to  a 
temperate  man  brings  on  the  propensity.  Upon  this  in- 
struction the  jury  rendered  a  verdict  for  the  patient, 
and  the  physician  promptly  appealed. 


EIGHT  TO  COMPENSATION".  163 

The  supreme  court  theorized  to  some  extent  upon 
the  nature  of  drunkenness,  and  concluded  that  it  was  a 
disease  produced  by  the  indulgence  of  a  habit,  and  that 
if  the  disease  or  disposition  to  drink  were  destroyed,  its 
return  by  renewed  indulgence  proved  a  disregard  of 
that  sense  of  moral  principle  which  a  rational  being 
would  be  expected  to  exercise.  Applying  these  theories, 
the  court  said:  "To  admit  that  after  being  so  placed 
(the  disposition  to  drink  being  destroyed)  he  might 
return,  is  to  admit  that  by  his  own  voluntary  act  he 
could  defeat  the  physician  of  his  promised  reward ;  and 
it  would  hence  follow  that,  by  taking  advantage  of  his 
own  wrong,  the  physician  would  have  the  twofold  mor- 
tification of  losing  his  fee  and  seeing  his  skill  mocked  at. 
Therefore  it  should  have  been  left  to  the  Jury  to  say 
whether,  if  the  propensity  had  been  destroyed,  the  pa- 
tient returned  to  his  habits  of  drunkeimess  vdth  the  dis- 
honest purpose  of  evading  the  contract."  The  judgment 
of  the  trial  court  was  reversed  and  the  case  sent  back 
for  a  new  trial  upon  the  lines  indicated  in  the  opin- 
ion.* 

Eelevant  to  the  question  in  consideration  is  a  case 
which  was  decided  in  South  Carolina  in  1829  and 
which  was  never  officially  reported,  but  is  preserved  in 
the  manuscript  of  the  court.    In  that  case  a  physician 

*  Fisk  vs.  Townsend,  1  Yerg.  (Term.),  146. 


164   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

undertook  to  cure  a  child  of  a  chronic  disease  with  the 
understanding  that  he  would  not  charge  more  than  five 
dollars  if  not  successful.  The  parent,  believing  that 
the  child  was  cured,  promised  to  pay  him  one  hun- 
dred dollars,  but  it  afterward  appeared  that  the  disease 
was  not  cured,  but  only  suspended.  The  court  refused 
to  hold  the  parent  to  his  agreement  to  pay  one  hundred 
dollars  made  under  his  mistaken  belief,  but  remitted 
the  physician  to  his  original  agreement.* 

Intent  that  Services  shall  be  Qratuitous;  Effect. — 
Whether  or  not  the  intent  of  the  physician  at  the  time 
he  renders  services  to  a  patient  that  such  services  shall 
be  gratuitous  will  defeat  his  right  to  compensation  is 
a  question  upon  which  there  is  some  conflict.  The 
supreme  court  of  North  Carolina  lays  down  the  rule 
that  if  such  services  "were  intended  to  be,  and  were 
*  accepted  as  a  gift  or  act  of  benevolence,"  then  the  physi- 
cian is  not  entitled  to  compensation;  but  if  the  patient 
did  not  understand  that  such  services  were  intended 
as  gratuitous,  and  accept  them  as  such,  the  physician  is 
entitled  to  compensation,  even  though  he  originally  in- 
tended to  make  no  charge,  f  On  the  other  hand,  the 
court  of  appeals  of  Missouri  holds  that  if  the  physician 
rendered  his  services  intending  them  to  be  gratuitous. 


*  Harris  vs.  Oberly,  Po.  Car.,  MS.,  Dec,  1829. 
f  Prince  vn.  McRae,  84  N.  C,  674. 


RIGHT  TO  COMPEN'SATION".  165 

he  could  not  subsequently  change  his  mind  and  collect 
for  them,  even  though  the  patient  did  not  know  when  the 
services  were  rendered  that  they  were  intended  to  be 
gratuitous.* 

A  careful  and  critical  examination  of  the  reasoning 
upon  which  these  two  decisions  are  based  leads  to  the 
opinion  that  the  ISTorth  Carolina  decision  is  not  well 
founded,  and  that  the  Missouri  court  expresses  the  true 
doctrine. 

The  Xorth  Carolina  court  subjects  the  transaction  to 
the  same  test  as  that  required  to  demonstrate  the  valid- 
ity of  an  ordinary  contract — viz. :  that  there  shall  be  a 
meeting  or  concurrence  of  minds  of  the  parties,  and  that 
there  shall  be  a  mutual  understanding  which  is  agreed 
to  by  both.  These  undoubtedly  are  necessary  elements 
to  the  validity  of  a  contract,  but,  as  a  matter  of  fact, 
the  transaction  in  consideration  is  not  a  contract,  but  a 
gift,  and  is  accordingly  to  be  governed  by  the  law  relat- 
ing to  gifts. 

The  essential  elements  of  a  gift  are  that  the  donor  or 
giver  shall  actually  or  symbolically  deliver  the  property 
which  is  the  subject  of  gift  to  the  donee  with  the  inten- 
tion that  it  becomes  the  donee's  without  the  payment  of 
any  consideration.  In  this  case  the  physician  represents 
the  donor,  the  patient  the  donee,  and  the  services  ren- 

*  Lippman  vs.  Tittman,  31  Mo.  App.,  69. 


166    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

dered  constitute  the  subject  of  gift.  The  services  are 
rendered  by  the  physician  with  the  intent  that  they 
shall  be  gratuitous;  the  services  being  received,  the  gift 
is  completed  and  perfect,  whether  the  patient  knew  them 
to  be  gratuitous  or  thought  them  to  be  otherwise  and 
expected  to  pay ;  for,  to  quote  the  words  of  Chief- Justice 
Sterrett,  of  the  supreme  court  of  Pennsylvania :  "  It  is 
now  too  well  settled  to  admit  of  question  that,  upon  the 
ground  of  implied  benefit,  the  assent  of  a  donee  will  be 
presumed;  and  the  title  will  vest  eo  instanti  the  gift 
is  made,  even  though  he  be  ignorant  of  the  transaction, 
and  will  continue  in  him  until  he  rejects  it."  *  More- 
over, if  the  services  were  intended  as  a  gift  when  ren- 
dered, the  physician  can  not  subsequently  change  his 
mind  and  collect  fees  for  such  services  even  though  it 
may  have  been  through  a  misapprehension  or  mistake 
of  facts  that  he  was  induced  to  originally  intend  the 
services  as  gratuitous,  f 

Whether  or  not  it  was  the  physician's  intention 
that  his  services  should  be  gratuitous  is  a  question  of 
fact  which  in  the  court  of  trial  must  be  determined 
by  the  jury  from  the  evidence  submitted  to  them.  All 
of  the  attending  circumstances  of  the  treatment,  the  re- 
lation of  the  physician  and  patient,  the  statements  of 

*  Tarr  et  al.  vs.  Robinson  et  al.,  168  Pa.  St.,  60. 
f  Pickslaj  vs.  Starr,  149  N.  Y.,  432. 


RIGHT  TO  COMPENSATION.  167 

the  physician  relative  to  compensation  for  such  treat- 
ment, and  the  fact  of  whether  or  not  the  physician  made 
a  charge  for  such  services  at  the  time  they  were  ren- 
dered, as  shown  by  his  books  of  original  entry,  are  all 
circumstances  to  be  taken  into  consideration  in  deter- 
mining the  intent. 

Intoxication  of  Physician,  Effect  of,  upon  Right  of 
Recovery. — A  physician  who  attempts  to  render  medical 
services  when  in  such  an  intoxicated  condition  as  to  be 
unable  to  exercise  proper  skill  and  judgment  is  not  en- 
titled to  any  compensation  for  such  services;  but  a 
patient  who  continues  to  employ  a  physician  after  he 
has  rendered  services  in  an  intoxicated  condition  is  not 
in  a  position  to  refuse  paying  his  fee  because  of  such 
past  drunkenness.* 

Services  among  Physicians;  Right  to  Compensa- 
tion.— There  is  among  physicians  a  custom  to  render 
services  for  each  other  without  compensation.  Whether 
or  not  this  custom  is  sufficiently  established  and  so 
generally  understood  as  to  defeat  the  right  of  a  physi- 
cian to  compensation  for  services  rendered  to  another 
physician  has  been  considered  by  the  supreme  court  of 
Georgia  to  be  a  matter  of  fact,  which  miist  be  proved  by 
evidence.  If  the  evidence  shows  that  it  merely  exists  as  a 
courtesy,  and  is  not  of  universal  observance,  then  the 

*  McKleroy  vs.  Sewell,  '73  Ga.,  657. 


168    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

physician  is  entitled  to  compensation,  unless,  of  course, 
there  was  an  understanding  or  intention  that  the  services 
were  to  be  gratuitous.  If,  on  the  other  hand,  the  evi- 
dence shows  that  the  practice  is  so  universal  as  to  justify 
a  physician  treated  in  the  belief  that  the  custom  becomes 
a  part  of  the  contract,  then  the  right  of  compensation 
does  not  exist.* 

Carelessness  in  Regard  to  Contagions  Diseases, 
Effect  of. — It  has  been  observed  that  a  physician  is 
bound  to  take  such  precautions  as  may  be  necessary  to 
prevent  the  transmitting  of  a-  contagious  disease  from 
one  patient  to  another.  It  naturally  follows  that  if  a 
physician  disregards  this  duty,  and  a  patient  thereby 
becomes  afflicted  with  such  contagious  disease,  the  physi- 
cian's right  to  compensation  for  services  rendered  to 
him  is  defeated,  to  the  extent  of  the  damages  suffered 
from  the  contagious  disease,f  if,  indeed,  not  in  toto.X 

Promissory  Note  for  Future  Services  Conditional. — 
Physicians  sometimes  undertake  the  treatment  of  a  pa- 
tient for  a  certain  fixed  fee  or  sum,  and  at  the  begin- 
ning of  the  treatment  require  the  patient  to  execute  a 
note  for  all  or  a  part  of  the  fee  agreed  upon.  The  con- 
sideration upon  which  such  a  note  is  based  is  the  future 
rendering  of  professional  services,  and  this  class  of  serv- 

*  Madden  vs.  Blain,  66  Ga  ,  49. 

+  Piper  vs.  Menifee,  12  B.  Monroe  (Ky  ),  465. 

1(.  See  p.  158  rf  seq. 


RiaHT  TO  COMPENSATION.  169 

ices  necessarily  means  personal  services,  and  not  the  serv- 
ices of  some  assistant  or  other  doctor;  it  therefore  fol- 
lows that  if  the  physician  entering  into  such  a  contract 
is  from  siclmess  or  other  cause  rendered  incapable  of  per- 
forming such  services  when  due,  under  the  contract  the 
patient  is  relieved  from  his  obligation  to  pay,  and  the 
note  may  be  repudiated  for  failure  of  consideration.* 

Partial  Allowance  by  Municipality  Extinguishes 
Claim  against  Patient.^ — A  physician  who  attends  a 
poor  person  under  such  circumstances  as  to  bind  the 
town  or  county  for  the  payment  is  entitled  to  look  for 
his  compensation  either  to  the  municipality  or  to  the 
patient;  but  if  he  presents  his  bill  for  such  services  to 
the  municipality,  and  it  is  audited  and  allowed  either 
at  its  face  value  or  for  a  less  amount,  and  the  physi- 
cian accepts  the  amount  allowed,  the  indebtedness  is 
completely  extinguished  both  against  the  patient  and 
the  municipality.  A  case  recently  arose  in  New  York 
involving  this  question.  A  physician  rendered  services 
to  the  value  of  eighty  dollars.  The  patient  being  a  poor 
person,  he  submitted  the  bill  to  the  town  "  as  health 
officer,"  and  received  twenty-five  dollars.  The  patient 
subsequently  performed  services  for  the  physician  to  the 
amount  of  twenty  dollars,  against  which  the  physician 
proposed  to  offset  his  "balance"  of  fifty-five  dollars. 

*  Powell  vs.  Newell,  59  Minn  ,  406,  61  N.  W.  Rep.,  335. 


170    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

The  supreme  court  was  of  the  opinion  that  the  trial 
court  was  authorized  in  finding  from  the  facts  that  the 
physician's  bill,  interposed  as  a  counterclaim,  was  for 
services  performed  for  the  town,  and  for  which  the  town 
was  liable.  The  court  said :  "  The  sum  audited  he  ac- 
cepted, and  the  elfect  of  said  transaction  was  necessarily 
to  extinguish  the  claim  against  the  town.  If  there  was 
any  liability  on  the  part  of  the  plaintiff  (patient),  as 
well  as  the  town,  for  the  defendant's  (physician's)  at- 
tendance upon  his  family,  which  defendant  might  have 
properly  claimed,  his  presentation  of  the  bill  to  the 
town,  and  acceptance  of  the  amount  at  wliich  it  was 
audited,  we  think  must  have  the  effect  of  also  extin- 
guishing the  claim  against  the  plaintiff."  * 

The  judgment  of  twenty  dollars  in  favor  of  the  pa- 
tient for  services  rendered  to  the  physician  was  therefore 
approved  and  sustained  by  the  supreme  court. 

*  Wood  vs.  Munson,  10  Hun,  468,  53  N.  Y.  S.  R.,  621,  24  N.  Y. 
Supp.,  287. 


CHAPTEE    VI. 

RECOVERY    OF    COMPENSATION. 

Demand. — The  first  step  to  be  taken  by  the  physi- 
cian to  recover  compensation  for  services  performed  is 
to  make  a  demand  on  the  patient  for  the  amount  which 
is  due.  This  is  usually  and  most  properly  done  by  pre- 
senting the  patient  with  a  bill.  Should  this  means 
prove  ineffectual  and  other  amicable  efforts  likewise 
fail  in  producing  the  desired  result,  more  drastic  meas- 
ures would  then  become  necessary;  but  before  depart- 
ing from  peaceful  methods  of  collection  and  attempt- 
ing to  enforce  the  payment  of  the  money  by  legal 
measures,  it  is  well  to  first  consider  whether  the  legal 
status  of  the  creditor  is  such  as  to  enable  him  to  in- 
voke the  aid  of  the  court. 

Is  Physician  Legally  Qualified  to  Practise? — In 
passing  upon  the  physician's  standing  in  court,  the  first 
questions  that  naturally  occur  are,  has  he  fully  com- 
plied with  the  requirements  of  the  law  so  as  to  be  en- 
titled to  practise  medicine,  and,  if  not,  what  legal  rights 
has  he  in  the  premises  ? 

The  first  question  is  one  of  fact,  to  be  determined 
12  j/jl 


172    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

by  carefully  examining  the  statutes  of  the  State  in  which 
the  physician  practises,  and  learning  whether  or  not  all 
of  the  requirements  are  fulfilled.  If  a  license  from  the 
State  board  is  prescribed,  has  this  license  been  obtained  ? 
And  if  this  license  must  he  filed  with  a  certain  county 
officer,  has  it  been  so  filed?  Should  such  an  examina- 
tion show  a  defect  in  the  physician^s  legal  right  to  prac- 
tise, a  careful  examination  of  the  law  then  becomes  ne- 
cessary to  determine  what  rights  he  really  has. 

Eights  of  TTnqnalified  Practitioners. — It  has  been 
observed  that  the  statutes  of  several  States  expressly 
provide  that  any  physician  practising  medicine  unlaw- 
fully shall  not  be  permitted  to  recover  for  his  profes- 
sional services.*  In  the  majority  of  the  States,  however, 
there  is  no  express  provision  upon  the  subject,  and  in 
such  States  the  right  of  the  unqualified  physician  to 
collect  is  the  subject  of  judicial  construction. 

It  is  a  familiar  rule  of  law  that  no  compensation  can 
be  recovered  in  a  court  of  justice  for  performing  an 
act  which  is  unlawful,  or  which  is  prohibited  by  statute,  f 
Upon  this  principle  the  courts  of  nearly  all  of  the  States 
have  based  their  decisions,  and  have  accordingly  declined 
to  aid  the  physician  who  has  failed  to  comply  with  the 

*  Such  provisions  exist  in  Georgia,  Indiana,  Kansas,  Kentuckr, 
Louisiana,  Maryland,  irichi<ran,  Nebraska,  North  Carolina,  Rhode  Is- 
land, Vermont,  Virginia,  and  Wisconsin. 

f  Diekerson  vs.  Gordy,  5  Robinson's  Rep.,  489. 


RECOVEEY  OF  COMPENSATION.  173 

requirements  of  the  law  in  recovering  fees.*  The  su- 
preme court  of  Tennessee  refused  to  permit  a  physician 
to  recover  where  he  had  not  procured  and  filed 
his  license  before  the  services  for  which  he  sought  to 
obtain  payment  were  rendered,  but  had  secured  and 
filed  such  license  before  suit  was  brought.  The  court 
said:  *^ Where  a  statute  has  for  its  manifest  purpose 
the  promotion  of  some  object  of  public  policy,  and  pro- 
hibits the  carrying  on  of  a  profession,  occupation,  trade 
or  business,  except  in  compliance  with  the  statute,  a 
contract  made  in  violation  of  such  statute  can  not  be 
enforced."  f 

In  Texas  the  court  of  civil  appeals  held  that  a  physi- 
cian who  had  graduated  from  a  medical  college  recog- 
nized by  the  American  Medical  Association,  but  who 
had  failed  to  procure  a  certificate  from  the  board  of 
medical  examiners  and  have  the  same  recorded,  should 
not  be  entitled  to  a  judgment  for  fees,  notwithstanding 
no  board  of  medical  examiners  had  been  appointed.;]; 

And  so  it  has  been  held  by  an  early  decision  in  Mas- 
sachusetts (1822)  that  a  physician  duly  qualified  by 
the  law  of  another  State  to  practise  in  such  State  shall 

*  Gardner  v.i.  Tatum,  81  Cal.,  8*70;  Roberts  vs.  Levy  fCal.),  31  P. 
■Rep.,  570;  Dickerson  vs.  Gordy,  5  Robinson's  Rep.,  489;  Fox  vs. 
Dixon,  34  N.  Y.  S.  R.,  TlO. 

+  Haworth  vs.  Montgomery,  91  Tenn.,  16.  18  S.  W.  Rep.,  S90. 

X  Kenedy  vs.  Schultz,  6  Tex.  Civ.  App.,  461. 


174    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

not  thereby  be  entitled  to  come  within  the  borders  of 
Massachusetts  and  recover  for  services  rendered.  The 
court  said :  "  The  object  of  the  act  was  to  guard  against 
the  evil  effects  to  be  apprehended  from  the  practices  of 
ignorant  and  unskillful  practitioners.  This  purpose  can 
not  be  completely  obtained,  if  those  of  this  description, 
if  any  such  there  be,  on  the  borders  of  the  com- 
monwealth, may  be  permitted  to  practise  within  its 
limits."  * 

This  rule  must,  of  course,  be  understood  as  subject 
to  the  privilege  since  extended  to  regularly  licensed  prac- 
titioners of  neighboring  States  to  attend  patients  within 
its  borders,  f 

The  court  of  appeals  of  the  State  of  Missouri  stands 
alone  in  holding  that  an  unqualified  practitioner  of 
medicine  is  entitled  to  recover  a  fee  in  the  absence  of  an 
express  statutory  provision  to  the  contrary.  The  court 
says:  '^ Whatever  may  be  the  rule  in  some  States,  we 
must  consider  it  as  well  settled  in  this  State  for  the 
present  that,  where  a  contract  is  not  prohibited  by  law, 
and  has  been  fully  executed  by  the  person  rendering  the 
services,  he  may  recover  their  value  from  the  person  who 
received  their  benefit,  though  in  rendering  the  services 
the  person  was  guilty  of  a  misdemeanor,  because  he 
rendered  them  without  a  proper  certificate  or  license  for 

*  Spalding;  vs.  Alford,  1  Pick.  (Mass.),  33. 
f  See  p.  1 5,  et  seq. 


RECOVERY  OF  COMPENSATION.  175 

doing  so."  *  From  a  critical  examination  of  tliis  state- 
ment it  will  appear  that  the  court  discriminates  between 
those  contracts  which  are  malum  in  se  and  those  which 
are  in  themselves  lawful,  but  whose  execution  is  re- 
stricted to  persons  possessing  prescribed  qualifications; 
refusing  to  aid  in  collecting  in  the  former  case,  but 
enforcing  a  payment  in  the  latter,  even  though  the 
party  proves  himself  to  have  committed  a  misdemeanor 
in  establishing  his  right  to  recover. 

This  is  undoubtedly  the  law  in  Missouri  at  the  pres- 
ent time,  but  the  fine-haired  distinction  upon  which  it 
is  based  dwindles  in  importance  when  compared  with 
the  forceful  reasoning  by  which  the  courts  of  other 
States  have  arrived  at  the  contrary  conclusion. 

Chief-Justice  Euffin,  of  the  supreme  court  of  ISTorth 
Carolina,  commenting  upon  this  distinction,  said :  "  The 
distinction  between  an  act  malum  in  se  and  one  merely 
malum  prohibitum  f  was  never  sound,  and  is  entirely 
disregarded;  for  the  law  would  be  false  to  itself  if  it 
allowed  a  party  through  its  tribunals  to  derive  advan- 
tage from  a  contract  made  against  the  intent  and  express 
provisions  of  the  law."  X 

*  Smythe  vs.  Hanson,  61  Mo.  App.,  286. 

I  Mala  in  se  are  those  a5ts  which  are  wrong  in  themselves,  such  as 
murder ;  as  opposed  to  mala  prohibita,  or  those  acts  which  are  only 
wrong  because  they  are  prohibited  by  law.  Rapalje  vs.  Lawrence,  Law 
Dictionary. 

J  Sharp  vs.  Farmer,  4  Devereux  and  Battle's  Law,  122. 


176    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

The  Missouri  court  is  not  content  with  discriminat- 
ing between  tilings  mala  in  se  and  those  mala  prohihita, 
but  it  goes  a  step  further  and  says  that  the  practice  of 
medicine  is  a  thing  not  even  malum  prohibitum  except 
as  to  those  unqualified  to  exercise  its  functions ;  and  that 
because  it  is  not  in  itself  prohibited  the  court  ought 
not  to  refuse  its  aid  to  one  who  has  unlawfully  prac- 
tised medicine,  an  office  not  in  itself  wrongful,  and 
which  might  lawfully  be  exercised  by  another, 

Notwithstanding  these  distinctions,  the  question  re- 
mains clear  and  distinct,  May  one  unqualified  to  prac- 
tise medicine  exercise  the  functions  contrary  to  the 
law  and  recover  compensation  by  the  aid  of  our  courts  ? 
Justice  Learned,  of  the  New  York  supreme  court,  said : 
"  It  is  a  settled  principle  that  one  can  not  recover  com- 
pensation for  doing  an  act  to  do  which  is  forbidden  by 
law  and  is  a  misdemeanor.  The  contrary  rule  would 
make  an  absurdity.  It  would  permit  one  to  hire  an- 
other to  commit  a  misdemeanor  and  would  compel  the 
payment  of  the  contract  price  for  doing  what  the  law 
forbids."  * 

Justice  Clopton,  of  the  supreme  court  of  Alabama, 
said :  "  It  is  too  well  settled  in  this  State  to  require  fur- 
ther argument,  that  a  penalty,  imposed  by  statute,  im- 
plies a  prohibition;  and  a  contract  founded  on  its  vio- 

*  Fox  ve.  Dixon,  34  N.  T.  S.  R.,  710. 


RECOVERY  OF  COMPENSATION.  177 

lation  is  void,  though  not  so  expressly  declared  by  stat- 
ute." * 

It  may  be  safely  understood  from  the  foregoing  that 
the  law  is  well  settled  that  one  practising  medicine  or 
surgery  without  first  complying  with  the  requirements 
of  the  statutes  can  not  enforce  the  payment  of  his  fees, 
whether  the  statutes  expressly  so  declare  or  are  silent 
upon  the  subject — the  State  of  Missouri  being  an  excep- 
tion to  this  rule. 

No  Recovery  for  Medicines  furnished. — The  physi- 
cian being  disqualified  to  practise  can  not  recover  for 
services  rendered,  but  what  effect  does  this  disqualifica- 
tion have  upon  his  right  to  recover  for  medicines  which 
he  has  actually  furnished  to  the  patient  ? 

An  instructive  case  upon  this  question  was  decided 
in  the  supreme  court  of  ISTew  York  about  seventy  years 
ago.  A  medical  practitioner  who  was  not  licensed  was 
called  to  attend  a  patient  after  other  physicians  were 
unable  to  benefit  her.  Quoting  from  the  opinion  of 
Chief-Justice  Savage:  "He  (the  physician)  came  and 
prescribed  for  the  patient,  and  cured  her  by  the  use  of 
two  phials  of  medicine  and  a  box  of  ointment.  What 
the  medicines  were  the  witness  knew  not.  She  was  asked 
the  value  not  of  the  medicines  simply,  for  her  answers 
show  that  she  estimated  the  value  of  the  services  of  the 

*  Harrison  vs.  Jones,  80  Ala.,  412. 


178    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

(physician)  as  worth  sixteen  or  eighteen  dollars,  because 
the  patient  was  cured.  The  medicines  at  the  apothecary's 
shop  would  probably  have  been  worth  only  a  few  shil- 
lings. .  .  .  Where  the  same  person  officiates  as  physi- 
cian and  apothecary  he  comes  within  the  decision  of 
this  court  that  an  unlicensed  practitioner  is  incapable 
of  suing  for  services  rendered  or  medicines  furnished 
as  a  physician.  As  the  patient  was  cured,  it  is  to  be 
regretted  that  (the  physician)  was  not  paid;  but  if  un- 
licensed pretenders  to  skill  in  diseases  can  recover,  as  in 
this  case,  the  statute  may  become  a  dead  letter;  the 
country  will  be  filled  with  mere  quacks,  peddling  their 
nostrums,  and  deceiving  and  destroying  the  ignorant 
and  credulous,  the  very  mischief  which  the  statute  is 
intended  to  prevent.  I  do  not  say  that  the  (physician 
in  this  case)  is  a  mere  pretender,  for  he  cured  his  pa- 
tient, and  in  honor  and  honesty  should  have  been  paid; 
but  it  is  our  duty  to  administer  the  law."  *  In  a  later 
case  an  unlicensed  physician  attempted  to  recover  for 
medicines  to  which  he  had  a  patent,  and  which  he  had 
prescribed  and  furnished  to  a  patient,  but  the  court  re- 
fused to  give  him  judgment  because  he  was  in  effect 
"peddling  his  nostrums  in  the  character  of  a  physi- 
cian, and  inducing  people  to  buy  and  use  them  in  conse- 
quence of  their  reliance  on  his  pretended  skill."    "  Such 

*  Allcott  vs.  Barber,  1  Wend.  (N.  Y.),  526. 


RECOVERY  OF  COMPENSATION.  IY9 

practices,"  says  the  court,  "  the  law  of  the  State  has 
declared  to  be  dangerous  to  the  public  health."  * 

In  harmony  with  the  cases  above  quoted  from,  the 
supreme  court  of  Alabama  holds  that  the  question 
whether  the  unlicensed  practitioner  may  recover  for 
drugs  and  medicines  furnished  depends  upon  whether 
such  drugs  and  medicines  were  administered  and  fur- 
nished by  him  acting  in  the  capacity  of  a  physician; 
or  whether  he  sold  them  to  the  patient  acting  in  the 
capacity  of  a  druggist  or  apothecary.  If  in  the  former 
capacity,  he  can  not  recover  for  the  value  of  such  drugs, 
but  in  the  latter  he  should  be  allowed  to  recover,  f 

In  full  accord  with  the  cases  considered  upon  this 
point  is  a  recent  Kansas  case  in  which  the  supreme  court 
by  a  process  of  cogent  reasoning  concludes  that  a  physi- 
cian who  furnishes  drugs  to  a  patient  does  so  in  the  capa- 
city of  a  physician  and  not  as  an  apothecary,  and  that, 
if  he  is  unlicensed  to  practise  medicine,  he  can  not  re- 
cover the  value  of  the  drugs  so  furnished.  J 

In  this  case  Justice  Green  said :  "  Can  the  plaintiff 
recover  for  the  medicine  alone,  having  furnished  it  as 
an  attending  physician  ?  The  statute  in  question  forbids 
any  one  from  practising  medicine  for  reward  or  com- 


*  Smith  vs.  Tracy,  2  Hall  (N.  Y.),  465. 

\  Holland  vs.  Adams,  21  Ala.,  680. 

X  Underwood  vs.  Scott,  43  Kan.,  714,  23  Pac.  Rep.,  942. 


180    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

pensation,  without  having  the  qualification  prescribed 
therein.  The  object  of  this  law,  doubtless,  was  to  pre- 
vent unauthorized  and  unqualified  persons  from  practis- 
ing medicine  in  any  of  its  branches.  The  right  to  prac- 
tise the  calling  of  the  physician  is,  by  this  statute,  taken 
from  certain  unqualified  persons,  and  the  statute  should 
not  be  so  construed  as  to  give  a  person  the  privilege  of 
exercising  a  right  which  is  in  violation  of  any  of  its  pro- 
visions. To  hold  that  a  person  who  furnished  medi- 
cine, as  a  physician,  could  recover  compensation  for  the 
medicine  so  furnished  or  prescribed,  would,  in  our  judg- 
ment, render  the  statute  nugatory,  and  any  unauthor- 
ized person  might  prescribe  for  a  patient  and  simply 
charge  for  his  medicine  and  thus  defeat  the  very  ob- 
ject of  the  law.  The  practice  of  medicine  may  be  said 
to  consist  in  three  things :  First,  in  judging  the  nature, 
character,  and  symptoms  of  the  disease;  second,  in  de- 
termining the  proper  remedy  for  the  disease;  third,  in 
giving  or  prescribing  the  application  of  the  remedy  to 
the  disease.  If  the  person  who  makes  a  diagnosis  of  a 
case  also  gives  the  medicine  to  the  patient,  he  is,  in  our 
judgment,  practising  medicine  within  the  provisions  of 
the  statute  in  question;  and  if  unauthorized  to  practise, 
or  is  acting  in  violation  of  the  provisions  of  the  statute, 
he  is  not  entitled  to  compensation  for  the  medicine, 
which  he  furnishes  at  the  time,  as  a  physician;  and  the 
instruction  of  the  court,  which  said  to  the  jury  that  the 


RECOVERY  OF  COMPENSATION.  181 

plaintiff  below  (the  physician)  could  recover  for  the 
medicine  furnished,  though  he  might  not  have  been 
entitled  to  practise  medicine,  was  erroneous."  * 

It  therefore  is  safe  to  conclude  that  outside  of  Mis- 
souri the  unlicensed  physician  is  unable  to  recover 
through  the  courts  either  compensation  for  professional 
services  rendered  or  the  cost  of  medicines  furnished  to 
patients  by  him  in  the  capacity  of  a  physician ;  and  that 
it  will  accordingly  be  unwise  for  one  not  legally  quali- 
fied to  practise  medicine  and  surgery  at  the  time  and 
place  of  rendering  professional  services  to  resort  to  suit 
for  the  recovery  of  his  fees. 

Repeal  of  Disqualifying  Act,  Effect  on  Services  Pre- 
viously Rendered. — But  what  effect,  if  any,  does  the  re- 
peal of  a  disqualifying  act  have  upon  the  physician's 
right  to  recover  for  services  which  were  unlawfully 
rendered  before  such  repeal  ?  Here  again  we  find  some 
conflict  of  authority,  the  supreme  court  of  Massachu- 
setts being  of  the  opinion  that  the  disqualifying  act  was 
not  designed  to  prevent  the  debt  from  accruing,  but  was 
intended  to  deprive  the  physician  unlawfully  practising 
from  the  means  of  enforcing  the  payment  of  such  debt, 
and  therefore  when  the  disqualifying  act  was  repealed 
the  obligation  stood  complete,  and  the  means  of  enforc- 
ing it  by  legal  proceedings  were  immediately  available,  f 

*  Underwood  vs.  Scott,  43  Kan.,  714,  23  Pac.  Rep.,  942. 
f  Hewitt  vs.  Wilcox,  1  Met.,  154. 


182    THE  LAW  IN  ITS  RELATIONS.  TO  PHYSICIANS. 

The  courts  of  all  of  the  other  States  which  have 
passed  upon  the  question  have,  however,  repudiated  this 
doctrine,  they  holding,  with  better  reason,  it  seems,  that 
such  contracts  are  void  in  their  inception,  and  that  the 
repeal  of  the  disqualifying  act  can  therefore  raise  no  ob- 
ligation on  the  part  of  the  patient  and  create  no  right  to 
recover  on  behalf  of  the  physician.*  It  has  been  here- 
tofore observed  that  the  repeal  of  an  act  making  it  a 
penal  or  criminal  offense  to  practise  medicine  without 
legal  qualifications  takes  from  the  court  the  power  of 
enforcing  the  penalties  incurred  under  such  repealed  law; 
the  distinction  made  between  the  criminal  and  civil 
rights  in  such  a  case  may  be  regarded  as  another  evi- 
dence of  the  policy  of  our  law  to  throw  about  the  ac- 
cused every  reasonable  protection. 

Steps  for  Consideration  in  Enforcing  a  Claim. — If, 
on  the  other  hand,  the  physician  has  perfected  his 
legal  status,  as  nearly  all  practising  physicians  and 
surgeons  have  done,  it  then  becomes  pertinent  to  con- 
sider the  various  steps  in  the  process  of  enforcing  pay- 
ment by  legal  measures. 

Action  will  lie  in  this  Country  for  Physicians'  Pees. 
— It  has  been  observed  that  in  England,  until  the  medi- 
cal acts  passed  during  the  present  reign,  the  physician 

*  Puckett  vs.  Alexander,  102,  N.  C,  95,  3  L.  R.  A.,  43,  8  S.  E.  Rep,, 
161 ;  Bailey  vs.  Mogg,  4  Denio,  60  (N,  Y.) ;  Nichols  vs.  Poulson,  6  Ohio, 
305  ;  Warren  vs.  Saxby,  12  Vt.,  146 ;  Quarles  vs.  Evans,  7  La,  Ann  ,  544. 


RECOVERY  OP  COMPENSATION.  183 

was  not  entitled  as  a  matter  of  legal  right  to  recover 
compensation  for  his  services,  the  law  considering  them 
of  so  exalted  and  honorable  a  character  that  it  would 
not  encourage  the  suspicion  that  they  had  been  ren- 
dered from  so  unworthy  a  motive  as  that  of  a  mer- 
cenary. Moreover,  Lord  Kenyon,  in  a  case  in  which 
he  refused  to  enforce  the  payment  of  a  fee,  expressed 
his  doubt  whether  the  physicians  would  not  disclaim  a 
right  which  would  place  them  in  society  on  a  footing 
with  common  men.*  However  justified  the  opinion  of 
Lord  Kenyon  may  have  been  at  the  time  and  place  of 
its  expression,  it  was  not  approved  by  the  wisdom  of 
the  succeeding  century  in  his  own  country,  nor  has  it 
ever  been  considered  suitable  to  the  conditions  in  this 
country.  Justice  Stevens,  of  the  supreme  court  of  Indi- 
ana, in  considering  the  application  of  the  English  doc- 
trine by  our  courts,  said  with  perspicuity  and  unanswer- 
able logic :  "  It  is  true  that  we  have  adopted  the  com- 
mon law  of  England,  but  it  is  a  qualified  adoption.  We 
have  only  adopted  so  much  of  it  as  is  of  a  general  na- 
ture and  not  local  to  that  kingdom,  and  not  inconsist- 
ent with  our  own  laws.  We  have  not  adopted  any  part 
of  it  that  is  peculiar  to  that  country,  or  that  is  contrary 
to,  or  inconsistent  with,  the  spirit  and  practice  of  our  own 
institutions.     It  is  at  least  doubtful  whether  the  prin- 

*  Chorley  vs.  Bolcot,  4  T.  R.,  3 17. 


184    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ciple  here  contended  for  was  any  part  of  the  common 
law  at  the  time  the  States  of  this  Union  dissolved  their 
allegiance  to  that  kingdom;  but  if  it  were,  it  is  clearly 
a  principle  which  is  local  to  that  country,  and  is  incon- 
sistent with  the  spirit  and  genius  of  all  our  institu- 
tions and  the  practice  of  our  courts.  Our  institutions 
and  laws  are  all  based  on  the  great  and  broad  princi- 
ples of  liberty  and  equality,  and  know  nothing  about 
nobles  and  ignobles,honorables  and  common  men.  There 
is  but  one  class  known:  all  stand  upon  the  same  foot- 
ing, and  bow  with  equal  submission  to  our  common  mas- 
ter— that  is,  the  law  of  the  land.  We  have  no  privileged 
ordiers  known  to  the  law,  either  as  to  suing  or  being 
sued."  * 

The  physician  entering  court  upon  the  common 
plane  of  all  litigants  must  come  prepared  with  proper 
and  sufficient  evidence  to  show  those  facts  upon  which 
he  bases  his  right  to  recover. 

Limitations  of  Actions. — Perhaps  the  first  question 
to  consider  at  this  stage  is  the  age  of  the  claim :  is  the 
account  barred  by  the  statute  of  limitations?  If  so, 
would  the  patient  be  willing  to  plead  such  a  defense  to 
defeat  recovery  ? 

The  statutory  period  of  limitation  upon  the  differ- 
ent classes  of  debts  and  obligations  varies  so  greatly  in 

*  Judah  vs.  McNamee,  3  Blackf.  (Ind.),  269. 


RECOVERY  OF  COMPENSATION.  185 

the  several  States  that  no  general  statement  of  the  law 
can  be  made;  but  recourse  must  be  had  in  each  case  to 
the  statutes  of  the  particular  State  to  determine  whether 
or  not  the  claim  is  within  the  period  of  limitation. 

If  the  account  consists  of  a  single  item,  it  is  a  sim- 
ple matter  to  determine  whether  it  is  within  or  beyond 
the  prescribed  period;  but  perhaps  the  account  consists 
of  a  series  of  items  extending  over  a  period  of  several 
years,  the  earlier  of  which  items  are  beyond  the  limit. 
Is  the  right  to  recover  such  items  barred  ?  Nearly  every 
State  recognizes  the  doctrine  of  mutual  accounts,  which 
is  founded  upon  the  presumption  of  a  mutual  under- 
standing that  the  parties  to  the  account  will  continue 
each  to  credit  the  other  until  either  desires  to  terminate 
the  dealing,  when  the  balance  will  be  ascertained  and 
will  be  considered  as  accruing  at  the  date  of  the  last 
item  of  the  account.  Neither  Louisiana  *  nor  Texas, 
however,  accept  this  doctrine,  but  in  case  of  a  continuous 
account  consider  the  statute  of  limitations  as  running 
against  each  item  from  the  date  of  its  entry.  New 
Hampshire  also  denies  the  rule,  excepting  as  between 
merchant  and  merchant,  f 

Whether  the  ordinary  account  of  a  physician — that 
is,  an  account  consisting  of  charges  for  professional 

*  Arbonneaux  vs.  Letorey,  6  Rob.,  456. 
f  Blair  vs.  Drew,  6  N.  H.,  235. 


186    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS.      ' 

services  on  the  one  hand,  and  of  credit  for  the  payment 
of  fees  by  the  particular  patient  on  the  other  hand — 
will  constitute  a  mutual  account  is  a  question  upon 
which  the  courts  of  the  different  States  are  divided. 

The  doctrine  more  commonly  accepted  is  that  an 
account  to  be  mutual  must  be  the  result  of  a  mutual 
exchange  of  commodities  or  services,  the  mere  payment 
of  money  on  one  side  not  being  considered  sufficient  to 
make  the  account  mutual  so  as  to  prevent  the  bar  of 
recovery.  This  is  the  law  in  California,  Georgia,  Indi- 
ana, Maine,  Maryland,  New  York,  and  Pennsylvania. 

On  the  other  hand,  the  supreme  court  of  Michigan 
holds  that  a  payment  made  upon  an  account  will  render 
the  whole  account  open  and  mutual,  so  as  to  take  the 
earlier  charges  out  of  the  operation  of  the  statute  of 
limitations.* 

This  question  seems,  unfortunately,  to  be  one  upon 
which  there  is  considerable  conflict  and  uncertainty, 
the  court  of  the  same  State  even  contradicting  itself 
in  the  course  of  a  few  years;  f  therefore  the  only  safe 
method  one  can  adopt  in  carrying  long  accounts  of  the 
sort  is  to  have  an  occasional  settlement  or  accounting 
in  which  the  balance  is  either  liquidated  by  cash  or  note, 
or  is  carried  forward  as  a  new  account,  or  for  the  new 

*  Hollywood  vs.  Reed,  55  Mich.,  308. 

f  See  Madden  vs.  Blair,  66  Ga.,  49;  and  Lark  vs.  Cheatam,  80 
Ga.,  1. 


RECOVERY  OP  COMPENSATION.  187 

period  of  time ;  in  such,  a  case  the  statute  of  limitations 
will  run  anew  from  the  date  of  such  settlement  or  ac- 
counting.* If  the  settlement  is  effected  by  carrying  the 
balance  forward,  it  is  essential  that  the  debtor  should 
have  the  account  before  him,  and  should  agree  either  ex- 
pressly or  impliedly  to  the  correctness  of  tbe  new  bal- 
ance. 

In  case  the  account  is  found  to  be  barred,  it  then 
becomes  necessary  to  determine  whether  the  patient 
would  avail  himself  of  a  defense  of  this  character,  for 
suit  may  be  commenced  upon  a  claim  against  which  the 
statutory  period  has  run,  either  in  whole  or  in  part,  and 
unless  the  defendant  specially  pleads  the  statute  as  a 
defense.  Judgment  may  nevertheless  be  entered  in  the 
plaintiff's  favor  for  the  full  amount  of  the  claim. 

Is  Proof  of  License  Necessary? — Perhaps  the  first 
question  to  decide  upon  commencing  suit  is  whether  it 
is  incumbent  upon  the  physician,  or  plaintiff,  to  prove 
that  he  has  fully  complied  with  the  law  of  his  State 
and  was  duly  qualified  to  practise  medicine  at  the  time 
the  services  in  question  were  rendered;  or  whether  this 
will  be  presumed  until  contradicted  or  disproved  by  the 
defendant.  Upon  this  question  there  is  again  a  differ- 
ence of  opinion  in  the  courts  of  the  different  States. 

Probably  the  rule  best  founded  on  reason  and  jus- 


*  Schall  vs.  Eisner,  58  Ga.,  190. 
13 


188    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

tiee  is  that  in  civil  suits  between  physician  and  patient 
the  physician's  right  to  practise  medicine  will  be  pre- 
sumed until  disproved,  or  at  least  disputed;  while  in 
cases  of  a  criminal  prosecution  against  one  for  practis- 
ing medicine  unlawfully,  he  must  prove  himself  to  have 
complied  with  the  law.  This  rule  is  very  clearly  laid 
down  by  Justice  McAUester,  of  the  Illinois  appellate 
court,  who  says :  "  After  a  thorough  examination  of  the 
authorities,  and  a  full  consideration,  we  are  of  the 
opinion  that  the  rule  with  its  proper  distinctions  may 
be  thus  stated:  Where  the  question  of  license  or  quali- 
fication of  a  physician  arises  collaterally  in  a  civil  ac- 
tion between  party  and  party,  or  between  the  doctor 
and  the  one  who  employed  him,  then  the  license  or  due 
qualification  under  the  statute  to  practise  will  be  pre- 
sumed; but  in  case  of  a  prosecution  on  behalf  of  the 
public  the  rule  is  otherwise,  and  in  such  cases  license 
or  due  qualification  under  the  statute  is  not  presumed, 
and  it  rests  with  the  defendant  to  prove  it."  * 

A  sound  reason  for  this  rule  is  that  when  an  act  is 
required  by  positive  law  to  be  done,  the  omission  of 
Avhich  would  be  a  misdemeanor,  the  law  presumes  that 
it  has  been  done,  and  therefore  the  party  relying  on  the' 
omission  must  make  some  proof  of  it.f 


*  Williams  vs.  People,  20  111.  App.,  93. 

•j-  City  of  Chicago  vs.  Wood, 24  111.  App.,  40. 


RECOVEEY  OF  COMPENSATION.  189 

There  is  considerable  doubt  cast  upon  the  full  appli- 
cation of  this  rule  in  Illinois  by  a  more  recent  opinion 
of  the  supreme  court  of  that  State.  The  court,  after 
referring  to  the  decision  sustaining  the  above  rule,  ex- 
presses a  desire  not  to  commit  itself  in  the  case  they 
were  then  considering,  which  was  one  between  third  par- 
ties in  which  the  physician's  qualifications  arose  only 
collaterally,  but  they  said :  "  If  he  (the  physician)  were 
himself  suing  to  recover  for  his  professional  services,  he 
would  doubtless  be  required  to  show  affirmatively  his 
compliance  with  the  law,  but  between  third  parties  the 
fact  that  he  is  and  has  for  a  long  time  been  practising 
as  a  physician  and  surgeon  is  sufficient  to  show,  prima 
facie,  that  he  is  lawfully  authorized  so  to  do."  * 

At  an  early  date  the  supreme  court  of  Kew  York 
decided  squarely  upon  the  point,  holding  that  in  a  suit 
by  the  physician  for  his  fees  a  license  would  be  pre- 
sumed until  the  contrary  was  shown,  f 

The  supreme  court  of  Louisiana,  also  at  an  early 
date,  held  that  where  one  aclvuowledged  a  physician  as 
such  by  employing  him  to  render  professional  services 
such  acknowledgment  was  prima  facie  evidence  that 
he  was  duly  qualified,;]:  but  that  when  the  defendant 

*  North  Chicago  Street  Ry.  Co.  vs.  Cotton,  140  III,  486. 
f  McPherson  vs.  Chesdell,  24  Wend.,  15;  Thompson  vs.  Sayre,  1 
Denio,  175. 

X  Prevosty  vs.  Nichols,  11  Martins,  21. 


190    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

in  the  suit  propounded  interrogatories  to  the  physi- 
cian regarding  his  license,  and  he  failed  to  answer  them, 
such  failure  would  he  taken  as  confessing  that  he  had 
no  license  to  practise.* 

On  the  other  hand,  the  rule  that  a  physician  must, 
upon  suing,  prove  that  he  has  secured  a  license  in  con- 
formity with  the  law,  was  acknowledged  as  the  law  in 
Delaware  in  1849. f 

The  supreme  court  of  Georgia  declared  such  rule  to 
be  the  law  in  that  State  as  early  as  1850. J  In  1855 
the  supreme  court  of  Alabama  said :  "  The  effect  of  these 
statutes,  taken  together,  was  to  prohibit  all  persons  from 
practising  as  physicians,  unless  they  were  licensed  by  a 
medical  board  in  their  State,  or  their  names  were  en- 
rolled according  to  the  provisions  of  the  statute,  or  un- 
less they  practised  on  the  botanic  system  alone ;  and  the 
necessary  result  of  this  prohibition  would  be  to  prevent 
a  recovery  in  all  actions  founded  on  contracts  for  medi- 
cal services,  unless  it  was  proved  that  the  persons  ren- 
dering such  services  were  not  within  the  prohibition."  ^ 

The  same  rule  is  held  to  be  the  law  in  Few  Jersey  |  ] 
and  Massachusetts.'^    The  supreme  court  of  Indiana,  in 

*  Dickerson  vs.  Gurdy,  5  Robinson,  489. 
f  Adams  vs.  Stewart.  5  Harr.,  144. 

X  Bower  vs.  Smith,  8  Ga.,  74. 

*  Mays,  Adams,  etc.,  vs.  Williams,  27  Ala.,  267. 
P  Dow  vs.  Haley,  30  N.  J.  L.,  354. 

^  Spaulding  vs.  Alford,  1  Pick.,  33. 


RECOVERY  OP  COMPENSATION.  191 

a  recent  decision,  after  reviewing  all  of  the  principal 
cases  on  both  sides  of  the  question,  expresses  itself  as 
believing  that  good  reason  exists  in  civil  suits  for  the 
rule  of  presuming  the  physician  qualified  until  the 
qualification  is  disputed  or  disproved,  but  the  court 
adds :  "  The  statutes  under  which  these  several  rulings 
have  been  made,  while  similar  to  our  own,  none  of 
them,  so  far  as  we  know,  provide,  as  does  ours,  that  no 
cause  of  action  shall  lie  in  favor  of  any  person  for  serv- 
ices as  physician  who  has  not,  prior  to  the  rendition  of 
such  services, procured  a  license  to  practise."  The  court 
then  argues  that  this  clause  in  the  statute  has  the  effect 
of  compelling  the  physician  to  prove  that  he  has  com- 
plied with  the  requirements  of  the  law  before  recover- 
ing in  a  suit  brought  to  collect  the  value  of  professional 
services.* 

The  statutes  of  some  States  contain  the  reasonable 
provision  that  no  evidence  of  authority  to  practise  medi- 
cine will  be  required  as  a  prerequisite  to  a  recovery  for 
professional  services  unless  notice  is  given  by  the  de- 
fendant that  he  shall  require  proof  upon  that  point. 
The  court  of  appeals  of  South  Carolina  held  in  an  early 
case  that  the  physician's  right  to  practise  would  be  pre- 
sumed unless  the  defendant  gave  him  reasonable  notice 
that  proof  upon  that  point  would  be  required,  f 

*  Cooper  vs.  Griffin,  13  Ind.  Anp.,  212,  40  N.  E.  Rep.,  '710. 
f  Crane  vs.  McLaw,  12  Richardson,  129. 


192    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Eegarding  those  States  in  which  the  question  has 
not  been  decided,  it  is  pertinent  to  say  that  no  better 
advice  can  be  given  than:  Assume  that  no  presumption 
of  law  will  be  indulged  in  favor  of  the  physician's  right 
to  practise,  and  have  your  case  prepared  accordingly. 

In  case  of  suit  brought  in  one  State  for  services 
rendered  in  another,  no  proof  is  necessary  of  the  right 
of  the  physician  to  practise  in  the  State  in  which  the 
services  were  rendered,  •  for  the  courts  of  the  State  in 
which  suit  is  brought  will  not  presume  that  the  prac- 
tice of  medicine  was  restricted  in  that  State.* 

Proof  of  Authority  to  Practise. — The  character  of 
proof  required  to  show  that  one  is  qualified  to  practise 
medicine  and  surgery  depends  almost  entirely  upon  the 
statutes  of  the  particular  State,  and  the  preparation  of 
this  proof  can  be  intrusted  only  to  those  skilled  in  the 
law;  therefore  it  will  be  idle  to  give  more  than  a  very 
cursory  review  of  the  law  upon  this  point.  Probably 
the  fundamental  rule  of  evidence  in  making  this  proof 
is  the  simple  one  that  the  test  evidence  of  which  the 
case,  in  its  nature,  is  susceptible  will  he  required.  This 
rule  means  that  if  a  right  is  to  be  proved  which  has  its 
origin  or  foundation  in  a  diploma  or  license,  then  the 
right  can  be  proved  only  by  producing  and  proving  the 
original  diploma  or  license.     Should,  for  instance,  one 

*  Downs  vs.  Minchew,  30  Ala.,  86. 


RECOVERY   OP  COMPENSATION.  193 

living  in  a  State  requiring  as  a  qualification  to  practise 
medicine  that  he  shall  have  graduated  from  a  regularly 
incorporated  medical  college,  desire  to  prove  that  he  has 
complied  with  this  law,  he  must  not  only  produce  his 
original  diploma,  but  he  must  show  the  incorporation 
of  the  college.  And  if  the  college  does  not  owe  its  cor- 
porate existence  to  a  special  act  of  the  legislature  of 
that  particular  State,  he  must  produce  the  act  of  incor- 
poration; he  must  also  show  the  college  to  have  existed 
at  the  time  the  diploma  purports  to  have  been  issued.* 

Should  the  law  not,  however,  provide  that  the  de- 
gree shall  have  been  issued  by  an  incorporated  body,  then 
a  production  of  the  corporate  records  is  not  necessary,  f 

The  courts  at  an  early  date  required  strict  proof  of  all 
of  these  facts,  never  admitting  a  diploma  as  proof  per  se 
of  its  genuineness,  but  requiring  that  the  genuineness 
of  the  parchment  should  be  proved  aliunde. X  The 
rigor  of  the  law  has,  however,  been  somewhat  amelio- 
rated by  statutes  which  frequently  provide  that  when 
the  physician  has  presented  his  diploma  to  the  State 
board  of  health  or  State  board  of  medical  examiners,  and 
verified  its  genuineness,  the  board  shall  issue  a  cer- 
tificate to  that  effect,  and  that  such  certificate  and 
diploma  shall  be  proof  of  the  holder's  right  to  practise 

*  People  vs.  Nyce,  34  Hun,  298;  Hunter  vs.  Blount,  27  Ga.,  76. 

f  Holmes  vs.  Hale,  74  Me.,  28. 

X  Hill  vs.  Boddie,  ,6  Ala.  (0.  S.),  56. 


194   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

medicine.  In  case  of  provisions  of  this  sort  the  certifi- 
cate serves  to  prove  and  identify  the  diploma.  Tlie 
statutes  sometimes  make  the  license  issued  by  the  desig- 
nated board  competent  evidence  without  proof  of  the 
signature.  Under  such  a  statute  it  is  incumbent  upon 
the  physician  to  simply  offer  the  license  in  evidence  as 
full  proof  of  his  rights.* 

Proof  of  Employment. — The  physician  having  shown 
himself  authorized  to  practise  medicine,  the  next  step 
in  establishing  his  right  to  recover  is  to  show  his  em- 
ployment. If  the  suit  is  instituted  for  the  purpose  of 
recovering  for  services  rendered  to  the  defendant  him- 
self or  any  immediate  member  of  his  family  for  whose 
medical  services  he  is  primarily  responsible,  then  the  mere 
fact  of  the  services  having  been  rendered  by  the  physi- 
cian and  accepted  by  the  patient  is  sufficient  to  establish 
.employment.  If, however, the  services  have  been  rendered 
to  some  third  party,  for  whose  medical  attendance  the  de- 
fendant is  not  primarily  liable,  this  step  in  proving  the 
case  may  require  great  care  and  skill.  The  law  govern- 
ing the  liability  in  such  cases  is  fully  examined  in  a  pre- 
ceding chapter,  f 

Proving  Services  Rendered. — Having  passed  very 
briefiy  over  the  method  of  proving  the  physician's  right 
to  practise  medicine,  and  his  proof  of  employment,  we 

*  White  vs.  Mastin,  38  Ala.,  147.  f  See  p.  01,  et  seq. 


RECOVERY  OF  COMPENSATION.  195 

will  pass  to  the  next  and,  to  him,  more  important  step 
of  proving  the  services  rendered. 

The  question  of  how  far  a  physician  may  go  in  giv- 
ing testimony  upon  this  point  is  often  a  very  nice  one, 
for  the  statutes  of  many  States  place  a  seal  of  secrecy 
upon  the  lips  of  the  physician  with  regard  to  knowl- 
edge obtained  in  a  professional  way.  The  Civil  Code  of 
New  York  provides  that  a  physician  "  shall  not  be  al- 
lowed to  disclose  any  information  which  he  acquired  in 
attending  a  patient  in  a  professional  capacity  and  which 
was  necessary  to  enable  him  to  act  in  that  capacity."  In 
New  York  a  physician  brought  a  suit  to  recover  for  serv- 
ices, and  the  patient  filed  a  general  denial  to  the  physi- 
cian's complaint  or  preliminary  statement  of  facts  upon 
which  he  relied  for  recovery.  The  question  then  arose 
as  to  what  facts  the  physician  would  be  permitted  to 
testify  to  under  the  law  from  which  this  quotation 
is  taken.  He  attempted  to,  and,  in  fact,  did,  in  the  trial 
court  testify  to  the  defendant's  physical  condition  and 
the  disease  for  which  he  treated  him;  but  upon  appeal 
the  judgment  was  reversed  because  the  physician  had  no 
right,  under  the  law  above  quoted,  to  disclose  such  in- 
formation, the  patient  not  having  waived  his  privilege. 
It  was  urged  by  the  physician's  counsel  that  the  patient, 
by  his  general  denial,  waived  the  privilege.  The  court, 
however,  held  this  ground  to  be  untenable,  notwith- 
standing the  general  denial  did  make  it  incumbent  upon 


196    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  physician  to  prove  all  of  the  facts  upon  which  he 
based  his  case;  had,  however,  the  patient  set  up,  as  a 
defense,  incompetency,  unskillfulness,  or  misconduct, 
he  would  then  have  put  in  direct  issue  the  manner  of 
treating  the  disease,  and  would  doubtless  have  been  held 
to  waive  the  privilege,  thereby  permitting  the  physician 
to  testify  to  the  condition  he  found  existing  in  the  pa- 
tient and  to  the  treatment  which  he  prescribed.  It 
was  also  urged  in  this  case  that  if  the  physician  were 
not  permitted  to  describe  the  disease  with  which  the 
patient  was  afflicted  he  could  not  show  the  value  of 
the  services,  but  the  court  was  of  the  opinion  that  such 
a  result  did  not  necessarily  follow.  Justice  Haight,  who 
wrote  the  opinion,  said :  "  The  physician  can  still  testify 
to  his  employment,  to  the  number  of  visits  made,  to  the 
examinations,  prescriptions,  and  operations,  and  if  the 
defendant  objects  to  his  describing  them  the  physician 
may  testify  as  to  their  value."  * 

This  rule  would  preclude  the  physician  from  cor- 
roborating his  testimony  as  to  the  value  of  the  serv- 
ices because  he  could  not  communicate  the  character  of 
the  services  rendered  to  another  physician  to  enable 
him  to  form  an  opinion  as  to  their  value;  but  it  is  ob- 
vious that  the  defendant  could  not  produce  a  witness 
to  dispute  the  value  of  such  services  without  making 

*  Van  Allen  vs.  Gordon,  83  Hun,  B19,  31  N.  Y.  Supp.,  907. 


RECOVERY  OP  COMPENSATION".  197 

public  the  facts  which  the  plaintiff  was  forbidden  to 
disclose,  thereby  enabling  the  plaintiff  to  produce  expert 
evidence  in  corroboration  of  his  own  testimony  as  to  the 
value  of  the  services  rendered. 

In  those  States  in  which  the  physician  is  not  pre- 
cluded by  express  statutes  from  disclosing  information 
obtained  by  him  in  a  professional  capacity,  he  will  be 
permitted,  at  the  proper  stage  in  proving  his  case,  to 
testify  fully  and  particularly  as  to  the  extent,  charac- 
ter, and  value  of  the  services  rendered.* 

Books  of  Account  in  Proving  Claims. — Unless  the 
services  upon  which  the  suit  is  brought  have  been  very 
recently  rendered  it  will  be  extremely  difficult,  if  not 
impossible,  for  the  physician  to  testify  to  the  time  of 
making  each  visit  and  the  value  of  the  same  without 
having  recourse  to  his  books  of  account. 

At  such  a  time  the  physician's  books  of  account  may 
generally,  if  properly  kept,  be  made  use  of  for  a  double 
purpose :  first,  they  may  be  used  to  refresh  the  mind  of 
the  physician  in  testifying  to  the  facts  referred  to  there- 
in, and,  second,  they  may  be  introduced  as  evidence  to 
prove  the  account  upon  which  suit  is  brought.  As  a 
means  of  refreshing  his  memory,  it  is  proper  for  a 
physician  upon  testifying  to  have  recourse  to  his  books 


*  For  a  list  of  States  containing  statutes  which  disquahfy  the  phy- 
sician to  give  such  evidence,  see  p.  481,  n. 


198    THE  LAW  IN"  ITS  RELATIONS  TO  PHYSICIANS. 

either  where  he  recollects  the  facts  and  can  testify  from 
memory,  or  where  he  does  not  recollect  the  facts,  but 
made  or  saw  the  writing  when  the  facts  were  fresh  in 
his  mind  and  remembers  that  it  then  stated  the  facts  cor- 
rectly.* 

No  general  rale  can  be  given  as  to  when,  where,  and 
under  what  circumstances  the  books  of  account  are  ad- 
missible as  evidence  of  the  facts  stated  in  them,  as  the 
subject  is  one  upon  which  the  decisions  from  the  courts 
of  the  several  States  are  irreconcilable;  moreover,  many 
States  have  statutes  regulating  the  subject  which  are 
peculiar  to  the  particular  jurisdiction.  In  ISTew  York 
the  physician's  books  of  account  are  admissible  as  evi- 
dence upon  his  showing  them  to  be  his  regular  books  of 
account,  and  proving  that  he  kept  no  clerk  who  was 
familiar  with  his  business  and  competent  to  testify  re- 
garding the  facts  stated  in  the  books;  that  some  of  the 
work  or  services  charged  was  performed,  and  that  he 
kept  correct  accounts,  f  The  proof  that  the  physician 
keeps  correct  books  of  account  should  be  made  by  pa- 
tients who  have  settled  bills  by  his  books.  J  The  physi- 
cian's wife,  who  transcribes  or  enters  items  into  the 
physician's  books,  is  not  a  clerk  within  the  meaning  of 

*  Chase's  Stephen's  Dig.  of  Evidence,  Art.  ISY,  N. 
\  Vosburg  vs.   Thayer,    12   Johns.,   461 ;   Atwood   vs.   Barney,  80 
Hun,  1. 

X  Beatty  vs.  Clark,  44  Hun,  126. 


RECOVERY  OF  COMPENSATION.  I99 

the  above  qualification.*  In  Pennsylvania  the  physi- 
cian's books  of  original  entry  are  admissible  in  evidence 
upon  being  properly  proved  to  be  sueh.f  In  Indiana 
it  is  very  doubtful  whether  books  of  account  are  com- 
petent evidence.  I  The  rule  as  it  exists  most  generally  is 
that  the  books  of  original  entry  are  admissible  when 
properly  proved.  If  the  entries  are  in  the  handwriting  of 
the  party  himself,  then  he  may  prove  the  same ;  if  in  the 
handwriting  of  a  clerk,  then  such  clerk  must  identify  or 
prove  the  account;  but  if  the  person  who  made  the  entries 
is  dead,  mentally  incapacitated,  or  beyond  the  jurisdic- 
tion, the  books  may  be  received  in  evidence  upon  proof 
of  the  handwriting  of  such  person.*  This  rule  must, 
however,  be  understood  as  subject  to  many  qualifications 
and  exceptions.  1 1 

It  is  generally  required  that  the  books  be  those  of 
original  entry.  Such  is  the  requirement  in  many  of  the 
States.^  In  Pennsylvania  it  is  held  that  a  book  con- 
taining entries  transferred  from  time  to  time,  as  the 
parties  had  leisure,  from  a  blotter,  which  is  preserved 


*  Smith  vs.  Smith,  13  N.  Y.  App.  Div.,  207. 
■f  In  re  Fulton  Est.,  178  Pa.  St.,  78. 

I  9  A.  and  E.  Encycl.  of  L.,  2d  ed.,  905. 

#  McBride  vs.  Watts,  1  McCord  (S.  C),  384. 

II  See  9  A.  and  E.  Encycl.  of  L.,  2d  ed.,  903  et  seq. 

^  The  courts  of  Kentucky,  Maine,  Massachusetts,  Minnesota,  Mis- 
souri, New  Jersey,  Pennsylvania,  South  Carolina,  Texas,  and  Vermont 
require  that  the  book  shall  be  one  of  original  entry. 


200    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

and  in  the  possession  of  the  party  offering  the  book,  is 
not  admissible  as  a  book  of  original  entries,  the  blotter 
being  the  permanent  record  of  the  transaction.*  If, 
however,  such  entries  are  first  made  upon  slips  of  paper 
or  cards  and  then  copied  into  a  book,  such  book  becomes 
one  of  original  entries,  f  If  these  temporary  memo- 
randa are  made  by  one  person  and  transcribed  into  the 
book  by  another,  it  will  probably  be  necessary  to  call  not 
only  the  person  transcribing  them  to  prove  the  entries 
made  in  the  book,  but  persons  making  the  original  mem- 
oranda as  well,  to  prove  that  at  or  about  the  time  the 
charges  were  made  services  were  performed  similar  to 
those  charged  in  the  book.  J 

Particularity  of  Items  of  Account. — As  to  the  par- 
ticularity with  which  the  account  must  set  forth  the 
items  of  the  bill  upon  which  suit  is  begun,  it  may  be 
stated  generally  that  this  depends  upon  the  nature  of 
the  account.  If  the  account  is  one  upon  which  there 
has  been  no  settlement  or  liquidation  of  the  character 
referred  to  in  a  preceding  paragraph,*  each  item  should 
be  charged  separately  and  under  the  date  upon  which 
the  particular  service  was  rendered,  with  a  specific  sum 

*  Breinig;  v.i.  Meitzler,  23  Pa.  St.,  156. 

+  Davison  vs.  Powell,  16  How.  Pr.,  467;  Patton  vs.  Ryan,  4  Rawle 
(Pa.),  408. 

I  Chicago  Lumber  Co.  vs.  Hewitt,  64  Fed.  Rep.,  314 ;  Miller  vs.  Shay, 
145  Mass.,  162;  Paine  vs.  Sherwood,  21  Minn.,  225. 

*  See  Limitations  of  Actions,  p.  184. 


RECOVERY  OF  COMPENSATION.  201 

charged  for  each  visit  or  item  entered  upoii  the  ac- 
count. There  are  cases  holding  tliat  such  particularity 
is  not  necessary,*  but  there  is  not  sufficient  authority 
to  Justify  one  in  ever  keeping  or  preparing  an  account 
with  less  particularity. 

In  an  early  -South  Carolina  ease  the  bill  sued  upon 
contained  an  item  of  "  thirteen  dollars  for  medicine  and 
attendance  on  one  of  the  general's  daughters,  in  curing 
the  whooping-cough."  A  new  trial  was  asked  for  on  the 
ground  that  the  physician  ought  to  have  given  a  specific 
bill  of  the  medicine  and  attendance.  The  court,  speak- 
ing through  Justice  Smith,  said :  "  I  did  think  otherwise 
on  hearing  this  case;  but  on  mature  consideration  I 
think  the  charges  were  too  general,  and  am,  therefore, 
for  granting  a  new  trial."  f  The  question  of  whether  or 
not  the  account  is  sufficiently  specific  must  be  decided  by 
the  court  according  to  the  prevailing  usage  in  similar 
cases.  J 

Regarding  the  character  of  the  visits  or  services  per- 
formed, and  the  kind  and  amount  of  the  medicines 
charged,  it  does  not  seem  necessary  that  the  bill  should 
be  descriptive.  In  an  early  New  Hampshire  case  in 
which  the  items  were  specified  as  "  to  visit "  and  "  to 
medicine,"  the  court  said :  "  Had  this  been  shown  to  be 

*  Van  Bibber  vs.  Merritt's  Exr.,  12  Weekly,  N.  C,  272. 
•f-  Haghes  vs.  Hampton.  2  Tread.  Const.  (S.  C),  745. 
X  Schmidt  vs.  Quin,  1  Mill  Const.,  418  (S.  C). 


202    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

different  from  the  usage  of  medical  men,  it  might  be 
proper  to  inquire  into  the  character  of  the  disease  and 
the  circumstances  under  which  the  services  were  per- 
formed; but  the  charge  stands  well  enough  until  some- 
thing is  shown  to  the  contrary.  There  is  nothing  upon 
the  face  of  the  charges  to  create  any  suspicion  of  their 
correctness ;  and  we  can  not,  without  evidence,  make  any 
presumption  against  them.  Or,  if  there  had  been  a 
general  charge  for  visits  and  medicines  throughout  the 
year,  and  a  gross  sum  aflOxed  thereto,  for  compensation 
to  the  physician  and  for  medicines  furnished,  there 
might  be  some  reason  for  inquiring  into  it.  But  here 
is  a  specific  sum  charged  for  each  visit;  and  it  was 
competent  for  the  defendant  to  show  that  the  services 
were  not  rendered  and  that  the  charges  were  unreason- 
able, if  such  had  been  the  facts."  * 

From  the  preceding  quotation  the  reader  will  realize 
the  necessity  in  case  of  an  unusual  charge  of  specifying 
the  character  of  the  services  rendered.  If,  for  instance,  a 
minor  operation  were  performed,  or  if  unusual  services 
of  any  character  were  rendered  while  making  a  visit,  and 
yet  the  item  appeared  upon  the  bill  as  a  "visit,"  with 
the  proper  amount  charged  for  the  real  services  per- 
formed, the  difference  between  the  sum  charged  and 
the  amount  ordinarily  charged  for  a  mere  visit  would 

*  Bassett  vs.  SpofEord,  11  N.  H.,  167. 


EECOVERY  OF  COMPENSATION.  203 

be  so  great  as  to  create  a  suspicion  as  to  the  correctness 
of  the  bill. 

Books  of  Account,  How  to  be  Kept. — It  is  advisable 
to  refer  more  particularly  at  this  point  to  the  manner 
and  method  of  keeping  the  physician's  books  of  original 
entry.  It  has  just  been  observed  that  a  physician  may 
be  required  to  state  specifically  the  nature  of  each  serv- 
ice rendered  and  charged  upon  the  account,  especially 
if  the  amount  charged  for  the  same  is  of  an  unusual 
character;  it  therefore  is  necessary  that  some  explana- 
tion be  entered  with  each  item  which  will  enable  the 
physician  to  refresh  his  memory  and  testify  to  the  par- 
ticular services  rendered. 

Upon  the  other  hand,  if  the  books  are  desired  to  be 
used  in  evidence  in  those  States  extending  to  profes- 
sional communications  between  physician  and  patient  the 
privilege  of  secrecy,  they  must  not  divulge  matters  com- 
ing within  the  protection  of  the  statute,  otherwise  they 
will  be  objectionable  and  will  be  excluded  upon  motion 
of  the  patient  or  his  personal  representatives.  Generally 
speaking,  any  information  obtained  by  the  physician  in 
his  professional  intercourse  with  his  patients  which  was 
necessary  to  enable  him  to  treat  them,  and  also  the  char- 
acter of  treatment  advised  or  prescribed  by  him,  are 
within  the  protection  of  the  statute.*     Here  is  clearly 

*  See  chap,  ix,  Privileged  Communications.     For  a  list  of  States  in 
which  the  privilege  is  recognized,  see  p.  481,  n. 
14 


204    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

a  case  where  the  requirements  of  the  law  on  the  one 
hand,  and  the  prohibition  of  the  law  upon  the  other, 
conflict  in  snch  a  way  as  to  subject  the  physician  to  a 
severe  hardship.  This  hardsliip  it  is  thought  may  be 
overcome  if  the  physician  living  in  a  State  which  enjoins 
silence  as  to  all  knowledge  professionally  obtained  will 
invent  a  code  of  arbitrary  signs  and  characters,  and  by 
the  use  of  these  characters  describe  the  ailments  for 
which  he  treats  his  patients,  together  with  the  services 
rendered  by  him.  Such  characters  when  used  must, 
however,  be  completely  unintelligible  to  others,  and  it 
can  not  be  safely  advised  that  he  would  be  permitted  to 
disclose  his  system  to  another  and  still  claim  the  privi- 
lege of  having  his  books  containing  such  characters  ad- 
mitted in  evidence. 

Illustrations. — Should  the  physician  have  been  so 
indiscreet  as  not  to  keep  a  book  of  accounts,  and  is  un- 
able to  recall  and  testify  specifically  to  the  items  of  the 
account  upon  which  he  brings  suit,  or  is  prohibited  from 
so  doiug  by  reason  of  the  death  or  mental  unsoundness 
of  the  patient,  his  ability  to  recover  is  a  matter  of  very 
grave  doubt.  In  the  case  of  Administrator,  etc.,  of  Galt- 
ney  vs.  Leggett,  Dr.  Leggett  brought  suit  to  recover 
among  other  sums  one  upon  an  open  accoimt  for  medi- 
cal services  rendered  Galtney  and  his  wife,  children, 
and  servants  during  the  years  from  1836  to  1842,  and 
which  amounted  in  the  aggregate  to  one  hundred  and 


RECOVERY  OP  COMPENSATION.  205 

forty  dollars.  Leggett's  only  witness  was  John  W.  Mo- 
nett,  Galtney's  regular  family  physician,  by  whom  it  was 
proved  that  Leggett  attended  Galtney's  family  in  his 
absence.  He  testified  that  he  had  seen  Leggett  at  Galt- 
ney's house  two  or  three  times,  but  did  not  say  at  what 
time.  He  did  not  know  anything  about  any  of  the 
charges  made,  nor  of  Leggett's  making  any  visits  at  the 
time  charged ;  he  knew  nothing  of  the  items ;  that  he  had 
heard  Galtney  frequently  say  that  he  had  employed  Leg- 
gett as  his  physician,  when  he  was  absent;  that  Galt- 
ney's family,  white  and  black,  numbered  nearly  one 
hundred  persons,  and  they  were  often  sick;  that  he  had 
called  two  or  three  times  in  consultation  with  Leggett  at 
Galtney's  house;  that  the  prices  charged  for  the  serv- 
ices were  according  to  the  usual  rates ;  that  Galtney  and 
Leggett  were  very  intimate,  and  that  it  was  not  unusual 
for  men  situated  as  they  were  to  suffer  accounts  to  run 
on  uncollected  for  a  long  time.  Justice  Thatcher,  in 
commenting  upon  the  case,  said :  "  The  evidence,  how- 
ever, upon  which  the  jury  found  for  the  plaintiff  some 
portion  of  the  account  for  medical  and  surgical  services 
seems  extremely  vague  and  uncertain.  The  only  wit- 
ness called  by  the  plaintiff  to  establish  this  account 
could  speak  neither  as  to  the  time  or  the  character  of  the 
services  charged,  and,  in  point  of  law,  gave  no  testi- 
mony as  to  the  account  filed.  It  is  true  that  it  is 
difficult  for  accounts  of  this  character  to  be  strictly 


20G    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

proved,  nor  indeed  is  it  necessai}';  but  it  would  seem 
to  be  always  in  the  power  of  a  physician  or  surgeon  to 
show  that  he  was  in  the  habit  of  keeping  correct  books 
of  accounts,  and  that  the  account  sued  upon  had  been 
correetl}^  copied  from  his  books.  It  is  also  true  that 
the  court  will  not  lightly  disturb  the  findings  of  a  jury 
in  cases  of  this  kind  where  they  are  particularly  the 
proper  judges  of  the  weight  of  the  evidence;  but  in  the 
present  instance  the  evidence  does  not  seem  at  all  to 
warrant  the  verdict  upon  the  account." 

And,  again,  in  the  case  of  Simmons  vs.  Means,  in 
which  suit  was  brought  to  recover  a  hundred  and  fifty 
dollars  for  medical  services  generally  and  medicines  fur- 
nished to  defendant  and  his  family,  and  in  which  the 
jury  found  a  verdict  for  the  plaintiff  for  a  hundred  and 
thirty  dollars,  the  evidence  showed  that  during  the 
period  charged  in  the  account  the  plaintiff  was  the  fam- 
ily physician  of  the  defendant,  and  was  seen  several 
times  going  to  and  from  the  defendant's  residence,  and 
was  frequently  at  the  house  of  the  defendant;  and  that 
the  charges  contained  in  the  account  filed  were  in  ac- 
cordance with  the  customary  rates  in  that  locality. 

Justice  Thatcher,  passing  upon  this  case  also,  said : 
''  The  evidence  introduced  to  prove  the  account  was  to 
the  effect  that  the  plaintiff  below  was  the  practising 
physician  in  the  famih^  of  the  defendant,  and  that  he 
was  seen  passing  to  and  from  the  defendant's  house,  dur- 


RECOVERY  OP   COMPENSATION.  207 

ing  the  time  included  in  the  account ;  and  that  '  he  did 
practise  in  his  family '  during  the  period,  together  with 
proof  that  the  amounts  charged  in  the  account  were  ac- 
cording to  the  customary  rates.  The  items  of  the  ac- 
count do  not  appear  in  the  record.  The  bill  of  excep- 
tions does  not  show  of  what  character  the  professional 
services  or  medicines  supplied  were,  or  that  any,  in  fact, 
were  supplied.  The  evidence  that  the  physician  prac- 
tised in  the  family,  and  was  seen  going  and  returning 
from  his  house,  is  not  sufficient  to  create  a  legal  pre- 
sumption of  indebtedness  by  the  defendant.  This  court 
has  gone  so  far  as  to  authorize  a  physician  to  recover 
in  an  action  against  his  patient  by  establishing  upon  a 
trial  the  facts  of  his  habit  of  keeping  correct  books  of 
accounts,  and  that  the  account  sued  upon  had  been  cor- 
rectly copied  from  his  books.  But  with  this  exception, 
physicians  must  be  held,  like  others,  to  the  customary 
rules  of  evidence.  In  this  view  the  finding  (of  the 
jury  in  favor  of  the  physician)  in  this  case  was  plainly 
unwarranted  by  the  evidence."  * 

Nor  has  the  jury  any  right  to  assume,  because  most 
of  the  items  of  such  an  account  have  been  positively 
proved  to  be  correct,  that  all  of  the  items  are  correct. 
The  court,  in  a  case  involving  this  point,  speaking 
through  Justice  Fisher,  said :  "  The  plaintiff  must  either 

*  Simmons  vs.  Means,  16  Miss.,  397. 


208    THE  LAW  IN  ITS  EELATIONS  TO  PHYSICIANS. 

prove  his  account  by  direct  and  positive  proof,  or  show- 
that  he  keeps  correct  books,  and  that  his  accounts  have 
been  correctly  transcribed."  * 

And,  again,  in  the  case  of  Dejol  vs.  Johnson,  admr., 
in  which  a  piiysician's  bill  had  been  allowed  and  paid  to 
the  amount  of  $612.55,  Justice  Spofford  said:  "The 
large  medical  bill  is  not  justified  by  the  evidence.  There 
is  no  detailed  account  of  items.  Two  or  tliree  visits  to 
the  parish  of  Calcasieu,  about  forty  miles  from  Dr. 
Thornton's  residence  in  Flat  Tow^n,  and  constant  atten- 
tion to  the  deceased  for  a  fortnight  in  his  own  house, 
whither  Dejol  was  removed  before  his  death,  together 
with  the  furnishing  of  medicines,  are  all  the  services 
specifically  proved.  It  is  true  a  witness  states  that 
the  doctor  attended  the  deceased  for  six  or  eight  months 
before  his  death.  The  disease  was  also  a  loathsome  one. 
But  the  opinion  of  this  witness  that  the  bill  was  a  just 
and  correct  one  can  not  supply  the  lack  of  data  to 
support  such  an  opinion.  Upon  a  survey  of  the  evidence 
we  are  satisfied  that  three  hundred  dollars  would  be  a 
liberal  allowance  for  the  services  as  proved,  and  the 
item  charged  as  paid  to  Dr.  Thornton  must  be  reduced 
to  that  sum."  f 

In  proving  that  professional  services  have  been  ren- 


*  Moore  vs.  .loyce,  23  Miss.,  584. 

f  Dejol  vs.  Johnson,  admr.,  12  La.  Ann.,  853. 


RECOVERY  OP  COMPENSATION.  209 

dered,  it  is  competent  for  the  physician  to  produce  a 
witness  to  testify  that  the  physician  left  his  office,  taking 
medicine  witli  him,  and  said  he  was  going  to  visit  tiie 
particular  patient,  and  started  in  the  direction  of  the 
place  where  he  lived.*  It  will  be  understood  from  the 
preceding  cases  that  this  evidence  is  simply  corrobora- 
tive in  effect  and  is  valuable  only  for  the  purpose  of 
strengthening  the  evidence  of  the  principal  witness  who 
testifies  as  to  the  particular  services  rendered. 

Propf  of  Amount  of  Claim. — There  is  no  presump- 
tion of  law  concerning  the  value  of  a  physician's  or  sur- 
geon's services,  and  there  is  no  presumption  that  a  jury 
can  ascertain  it  without  testimony  of  some  kind  from 
persons  knowing  something  about  such  value,  f  It  has 
been  shown  that  the  plaintiff  is  a  competent  witness  to 
testify  to  the  value  of  the  services  which  he  has  sued 
to  recover,  the  patient  being  alive  and  of  sound  mind. 
Should  any  other  physician  be  cognizant  of  the  char- 
acter and  extent  of  the  services  upon  which  suit  is 
brought,  it  will  also  be  competent  for  him  to  testify 
to  their  value;  or,  if  the  case  is  such  that  the 
plaintiff  is  not  precluded  from  disclosing  the  character 
of  the  defendant's  disease  and  the  nature  and  extent  of 
his  services,  then  he  may  call  upon  any  regular  physician 


*  Autauga  Co.  va.  Davis,  32  Ala.,  TOS. 
f  Wood  vs.  Barke-,  49  Mich.,  296. 


210    THE  LAW  IN  ITS  EELATIONS  TO  PHYSICIANS. 

to  testify  as  to  their  value.  When  such  testimony  is 
given  regarding  the  value  of  the  services  rendered  and 
none  is  given  to  contradict  it,  the  jury  is  not  permitted 
to  disregard  the  evidence  and  form  an  independent  con- 
clusion, but  must  find  in  accordance  with  the  evidence.* 
Should  conflicting  evidence  upon  this  point  be  adduced 
by  the  parties,  it  then  becomes  the  duty  of  the  jury  to 
scrutinize  it  and  deliberate  upon  the  matter  with  care, 
so  as  to  arrive  as  nearly  as  possible  at  the  true  value  of 
the  services  perform-ed. 

The  supreme  court  of  Louisiana  lays  down  the  rule 
that  where  the  witnesses  differ  as  to  the  proper  charges 
to  be  made  by  physicians,  the  correct  rule  is  to  allow 
the  lowest  estimate,  f 

Should  the  case  be  one  of  a  difficult  operation,  and 
the  ability  and  professional  standing  of  the  physician 
specially  high,  these  facts  are  proper  for  the  considera- 
tion of  the  Jury  and  will  justify  a  greater  compensa- 
tion. J  A  witness  who  is  produced  to  show  the  value  of 
the  services  in  question  must  testify  regarding  the  value 
of  the  particular  services  upon  which  suit  is  pending  or 
those  of  the  same  character.*  It  is  not  necessary  that 
the  physician  should  prove  the  value  of  the  services  to 

*  Wood  vn.  Barker,  49  Mich.,  296. 

f  Succession  of  Duclos,  11  La.  Ann.,  406. 

t  Lanjie  ns.  Kearney,  4  N.  Y.  Supp.,  14,  affirmed,  127  N.  Y.,  676, 

#  Trenor  vs.  Central  P.  R.  R.  Co.,  50  Cal.,  222. 


RECOVERY  OP   COMPENSATION.  211 

the  patient,  the  value  to  be  proved  by  him  is  the  ordinary 
and  reasonable  price  for  services  of  that  nature.*  The 
reasonableness  of  the  charges  can  not  be  established  by 
a  witness  proving  what  the  same  physician  had  charged 
him  in  a  similar  case,f  nor  is  one  not  a  physician  com- 
petent to  testify  as  to  the  value  of  such  services.^  While 
in  epidemics  custom  may  sanction  an  increased  rate  of 
charge,  such  conditions  will  not  justify  exorbitant  fees, 
and  in  estimating  the  correct  amount  the  court  is  in- 
clined to  the  lowest  estimate  given  by  witnesses.* 

The  case  of  Board  of  Commissioners  of  Marion 
County  vs.  Chambers  is  instructive  as  to  the  character 
of  proof  requisite  and  permissible  to  determine  the 
amount  of  fee  to  which  the  physician  is  entitled.  While 
this  case  was  one  in  which  a  physician  brought  suit 
against  a  county  to  collect  fees  due  him  from  the 
county,  yet  the  rules  of  law  which  were  held  applicable 
to  that  case  would  govern  equally  in  a  like  action  where 
the  plaintiff  and  defendant  were  both  natural  per- 
sons. In  this  case  Dr.  C.  was  employed  by  the 
coroner  to  conduct  a  post-mortem  examination,  for 
which  he  filed  a  claim  of  $180.  The  commissioners  al- 
lowed him  $105,  and  from  that  order  he  appealed  to  the 

*  Styles  vs.  Tyler,  64  Conn.,  432. 
f  Collins  7,',s.  Fowler,  4  Ala.,  64*7. 
X  Mock  vs.  Kelly,  3  Ala.,  38Y. 

*  Collins  vs.  Graves,  13  La.  Ann.,  95. 


212    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

superior  court,  where  a  verdict  was  given  him  for  the 
full  amount  of  his  claim.  The  case  was  then  appealed 
to  the  supreme  court,  which  reviewed  the  trial  of  the 
case  in  the  superior  court  and  affirmed  the  judgment 
of  that  court.  There  being  much  evidence  fully  sus- 
taining the  value  of  the  doctor's  services  as  charged  and 
allowed,  the  court  confined  itself  to  an  examination  of 
alleged  errors  of  the  superior  court  in  admitting  and 
rejecting  certain  evidence. 

The  counsel  for  the  board  of  commissioners  asked 
the  doctor,  "  What  has  been  the  average  daily  income 
from  your  profession  for  the  two  years  past  ?  "  The  doe- 
tor's  counsel  objected  to  the  question,  and  the  court 
sustained  the  objection.  The  supreme  court,  in  passing 
upon  this  ruling,  said :  "  Whether  the  income  of  the 
appellee  (the  physician)  was  much  or  little  was  entirely 
immaterial.  If  a  surgeon  properly  performs  a  surgi- 
cal operation  he  is  entitled  to  recover  the  reasonable 
value  of  his  services,  neither  more  nor  less,  whether  his 
professional  income  be  ten  or  ten  thousand  dollars  a 
year.  The  value  of  the  services  can  not  be  measured  by 
the  professional  income  of  any  series  of  years.  If  the 
physician  or  surgeon  possesses  the  requisite  skill  and 
knowledge,  and  exercises  such  Icnowledge  and  skill  prop- 
erly, he  is  entitled  to  be  paid  the  reasonable  value  of 
services  rendered  by  him,  irrespective  of  the  question 
of  his  yearly  professional  income."     The  plaintiff  pro- 


RECOVERY  OF  COMPENSATION.  213 

duced  two  physicians  and  surgeons  to  testify  in  his 
behalf  as  to  the  value  of  the  services  performed;  these 
witnesses  testified  upon  their  examination  in  chief  that 
they  were  physicians  and  surgeons,  and  that  they  were 
competent  to  testify  to  the  value  of  services  rendered  in 
making  post-mortem  examination;  but,  on  cross-exami- 
nation, one  of  them  said :  "  I  don't  know  what  physi- 
cians have  charged  for  making  post-mortems  for  the 
county;  I  know  nothing  of  the  prices  at  which  services 
can  be  procured;  I  judge  from  what  I  think  it  would  be 
worth,"  The  other  witness  said  upon  cross-examina- 
tion :  "  I  have  never  made  examinations  for  the  county ; 
my  testimony  is  based  upon  all  the  circumstances.  I 
base  my  opinion  on  what  I  think  is  the  value  of  such 
services,  irrespective  of  the  price  charged  or  paid."  The 
counsel  for  the  board  of  commissioners  then  asked  to  have 
the  testimony  of  these  witnesses  stricken  out,  which  the 
trial  court  refused  to  do.  The  supreme  court  said :  "  No 
error  was  committed  in  overruling  appellant's  motion. 
The  testimony  was  competent,  for  the  witnesses  were 
shown  to  be  experts,  and  to  possess  such  knowledge,  skill, 
and  acquaintance  with  the  subject  under  investigation 
as  entitled  them  to  express  their  opinions  to  the  jury. 
They  may  have  had  some  knowledge  of  the  value  of  such 
services,  without  knowing  anything  at  all  about  what 
others  were  charging  for  like  services.  ...  It  is  clear, 
from  the  statements  of  the  witnesses,  that  they  were 


214    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

skilled  in  their  professions,  and  that  they  did  have  suf- 
ficient acquaintance  with  the  nature  and  value  of  serv- 
ices rendered  in  post-mortem  examinations  to  entitle 
their  opinion  to  go  in  evidence."  The  board  of  commis- 
sioners' counsel  put  the  question  to  one  of  the  members 
of  the  board :  "  At  what  price  could  you  have  procured 
competent  physicians  to  make  post-mortem  examina- 
tions during  the  years  1877  and  1878  ?  "  The  physi- 
cian's counsel  objected  to  the  question,  and  his  objection 
was  sustained.  Upon  the  correctness  of  this  ruling  the 
supreme  court  said :  "  The  question  in  issue  was,  not 
what  others  would  have  done  the  work  for,  but  what  was 
the  reasonable  value  of  the  services  of  appellee  (the 
physician).  It  was  no  more  competent  for  the  appel- 
lant (the  board)  to  introduce  the  offered  evidence  than  it 
would  have  been  for  the  appellee  to  prove  that  any  other 
surgeon  would  have  charged  twice  as  much  as  the  sum 
claimed  by  the  appellee.  It  was  competent  for  appellant 
to  call  competent  witnesses  to  give  their  opinions  of  the 
value  of  the  services,  but  not  to  prove  particular  bar- 
gains or  offers."  * 

In  case  of  medical  services  rendered  to  counties  or 
towns,  the  statutes  of  some  States  authorize  the  board 
having  charge  of  such  matters  to  limit  the  amount  of 
relief  to  be  furnished.     With  such  a  statute  the  board 

*  The  Board  of  Commissioners  of  Marion  County  vs.  Chambers,  75 
Ind.,  409. 


RECOVERY  OF  COMPENSATIOK  215 

may,  before  the  relief  is  furnished  or  services  rendered, 
establish  a  limit,  but  where  no  such  limit  has  been  es- 
tablished, the  board  must  allow  the  reasonable  value  of 
the  services  rendered.* 

Defense. — The  physician  having  shown  his  employ- 
ment, established  the  fact  that  the  services  were  ren- 
dered, and  proved  the  value  of  those  services,  it  then  be- 
comes incumbent  upon  the  patient  to  show  some  just 
reason  why  he  should  not  pay,  and,  if  he  fails  in  this, 
judgment  will  be  rendered  against  him.  Experience  has 
shown  that  the  human  mind  is  very  fruitful  in  devising 
excuses  and  discovering  reasons  for  avoiding  obliga- 
tions; it  therefore  usually  happens  that  the  defendant 
has  a  defense.'  Perhaps  the  most  common  defense,  when 
the  suit  is  between  the  physician  and  patient,  is  that  of 
general  denial,  which  simply  necessitates  the  strict  proof 
that  the  services  were  rendered  as  alleged,  and  that  they 
are  of  the  value  claimed.  Frequently  the  defendant  pro- 
duces witnesses,  who,  it  has  been  heretofore  shown,  must 
be  physicians,  to  prove  that  the  services  are  of  a  less 
value  than  that  claimed.  In  such  a  case  the  plaintiff 
should  be  careful  to  secure  as  his  witnesses  men  of  good 
professional  standing  whose  judgment  is  esteemed  and 
integrity  undoubted.  The  defense  has  been  interposed 
that,  excepting  for  those  visits  specially  requested,  the 

*  Hunter  vs.  Jasper  Co.,  40  la.,  568. 


216    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

patient  is  not  liable  unless  the  physician  shows  some 
reasonable  necessity  for  the  additional  visits.  This  de- 
fense has  no  legal  weight;  a  physician,  being  employed 
to  attend  a  patient,  is  the  proper  and  the  best  judge  of 
the  number  and  frequency  of  visits  necessary,  and,  in  the 
absence  of  proof  to  the  contrary,  the  court  will  presume 
that  all  professional  visits  made  were  deemed  necessary 
and  were  properly  made.  Justice  Temple,  of  the  su- 
preme court  of  California,  said :  "  It  would  be  a  danger- 
ous doctrine  for  the  sick  to  require  a  physician  to  be  able 
to  prove  the  necessity  of  each  visit  before  he  can  re- 
cover for  his  services.  This  is  necessarily  a  matter  of 
judgment,  and  one  concerning  which  no  one,  save  the 
attendant  physician,  can  decide.  It  depends  not  only 
upon  the  condition  of  the  patient,  but,  in  some  degree, 
upon  the  course  of  treatment  adopted."  * 

In  the  case  of  Jeffries  vs.  Harris  the  defendant  at- 
tempted to  show  the  character  of  the  physician,  but  was 
not  permitted  to  do  so.  The  court  said :  "  Character  was 
not  put  in  issue  by  the  nature  of  this  action,  and  the 
defendant  is  equally  liable  on  his  assumpsit,  whether  the 
plaintiff's  character  were  good  or  bad;  for,  if  he  chose 
to  employ  him  as  a  physician,  it  is  not  competent  to 
him,  afterward,  to  say  that  he  is  not  a  good  one,  and, 
therefore,  that  he  will  not  pay  him.     If,  indeed,  the 

*  Todd  vs.  Myres,  40  Cal.,  855. 


RECOVERY  OF  COMPENSATION.  217 

plaintiff  had  imposed  on  the  defendant  by  false  preten- 
sions to  skill,  he  would  have  been  responsible  for  any  in- 
jury done  him;  but,  in  this  case,  the  plaintiff  is  enti- 
tled to  compensation  for  skill  and  labor,  whatever  they 
may  be."  * 

A  very  common  sort  of  defense  is  that  in  which  the 
defendant  admits  the  rendering  of  the  services  but 
claims  that  they  were  so  unskillfully  rendered  as  to  be 
injurious;  and  frequently  he  files  a  counter-claim  for 
damages  resulting  from  such  unskillful  or  negligent 
treatment.  The  constant  recurrence  of  cases  in  which 
this  sort  of  defense  is  interposed  will  justify  a  careful 
examination  of  the  law  governing  the  proof.  Many  of 
the  trial  courts  seem  to  have  been  of  the  opinion  that 
when  a  patient  pleaded  as  a  defense  to  a  physician's  suit 
to  recover  compensation  for  professional  services  that 
such  services  were  not  rendered  with  skill,  this  plea 
immediately  east  the  burden  upon  the  physician  of  show- 
ing by  a  fair  preponderance  of  evidence  that  the  services 
rendered  by  him  were  performed  with  all  necessary  or 
required  skill.  The  courts  of  last  resort  have,  however, 
universally  declared  this  to  be  a  mistaken  view,  they 
holding  the  law  to  be  that  where  the  physician  has  made 
a  prima-facie  case  by  proving  his  professional  character, 
his  employment  by  the  defendants,  the  rendition  of  the 

*  Jeffries  vs.  Harris,  3  Hawks.  (N.  C),  105. 


218    THE  LAW  IX  ITS  RELATIONS  TO  PHYSICIANS. 

services  and  their  value,  he  is  entitled  to  judgment  Tin- 
less  the  defendant  can  show  by  competent  evidence  that 
he  has  been  guilty  of  negligence  or  want  of  proper  skill 
in  treating  the  particular  patient.*  Nor  will  the  fact 
that  a  patient  grew  worse  under  the  plaintiff's  treatment 
and  grew  better  after  he  was  discharged  show  that  the 
physician  was  guilty  of  negligence  or  nnskillfulness  in 
treating  him.  To  illustrate  more  fully  and  show  the 
character  of  evidence  required,  a  quotation  is  taken  from 
a  case  in  point:  The  patient  in  this  case  had  sustained 
a  serious  injury  by  the  explosion  of  a  djTiamite  cartridge 
and  the  plaintiff  had  been  called  as  a  specialist  to  treat 
Ins  e3TS  and  ears.  The  defense  interposed  was  that  of 
improper  treatment.  In  commenting  upon  the  evidence 
offered  to  establish  this  defense  the  court  said :  "  It  is 
claimed  that  the  plaintiff  improperly  applied  and  used 
a  tube  of  hot  water  over  the  nose  to  cure  the  ailment  or 
injury  to  his  eyes ;  that  the  heat  was  so  great  as  to  be  in- 
jurious. Other  physicians  were  in  attendance  on  the 
patient,  but  their  evidence  was  not  produced.  Xo  surgi- 
cal or  medical  witness  was  called  by  the  defendant  to 
say  that  the  treatment  was  improper  or  negligent  in  the 
least  degree,  whatever  uneducated  persons  or  non-ex- 
perts might  conjecture  on  the  subject.     The  plaintiff 

*  Robinson  vs.  Campbell,  47  la.,  625 ;  Styles  vs.  Tyler,  64  Conn., 
432;  Baird  vs.  Morford,  29  la.,  531;  Wooster  t's.  Paige,  1  Pae.  Coast 
L.  J.,  324. 


RECOVERY  OP  COMPENSATION.  219 

could  not  be  convicted  of  malpractice  on  such  evidence. 
He  could  not  be  held  responsible  simply  because  he 
failed  to  cure  the  defendant's  son,  nor  for  mere  mis- 
judgment  in  treating  him,  if  the  treatment  was  such 
as  a  physician  antl  surgeon  of  ordinary  knowledge  and 
skill  would  apply."  * 

For  is  it  a  valid  defense  to  a  suit  by  a  physician  to 
recover  the  value  of  his  services  to  show  that  the  nurses 
in  the  hospital  to  which  the  patient  went  upon  the  phy- 
sician's advice  were  negligent  or  careless,  it  not  being 
shown  that  the  physician  was  proprietor  or  manager 
of  the  hospital,  f 

Drunkenness  is  also  sometimes  pleaded  as  a  defense 
to  such  an  action.  If  a  physician  who  is  called  to  attend 
a  patient  is  in  such  an  intoxicated  condition  as  to  be 
unable  to  fulfill  the  duties  of  his  profession,  this  is  not 
only  a  complete  defense  to  an  action  commenced  to  re- 
cover compensation  for  those  particular  services,  but 
there  is,  under  the  law  of  some  States,  a  criminal  liabil- 
ity involved.  If,  however,  a  patient,  after  the  doctor  has 
treated  him  in  an  intoxicated  condition,  continues  to 
send  for  or  employ  him,  he  will  be  held  to  have  waived 
all  objection  to  his  habits  of  intoxication  and  will  not 
be  permitted  to  plead  such  a  defense. J 

*  Wurdeman  vs.  Barnes,  92  Wis.,  206,  66  N.  W.  Rep.,  111. 
f  Baker  vs.  Wentworth,  155  Mass.,  338,  29  N.  E.  Rep.,  589. 
X  McKleroy  vs.  Sevvell,  IS  Ga.,  657. 
15 


220    THE  LAW  IX  ITS  RELATIONS  TO  PHYSICIANS. 

Effect  of  Judgment  for  Recovery  of  Fee. — A  judg- 
ment being  entered  in  favor  of  the  physician  in  a  suit 
commenced  by  him  to  recover  the  value  of  his  profes- 
sional services,  it  is  interesting  and  valuable  as  "well  to 
inquire  what  effect  such  a  judgment  will  have  upon  a 
possible  right  of  action  against  him  and  in  favor  of 
the  patient  growing  out  of  nnskillfulness  in  the  per- 
formance of  the  same  services  for  which  he  has  just  re- 
covered. It  is  a  general  principle  of  law  that  a  judg- 
ment of  a  court  of  concurrent  jurisdiction  directly  upon 
a  point  is  a  bar  to  an  action  upon  the  same  point  and 
between  the  same  parties  in  another  suit. 

The  court  of  appeals  of  ISTew  York  has  applied  this 
doctrine  to  its  full  extent.  In  this  instance  suit  had 
been  commenced  by  a  patient  to  recover  damages,  laying 
the  amount  at  five  thousand  dollars,  from  his  physician 
for  unskillful  and  negligent  treatment  of  a  dislocated 
elbow  and  fractured,  arm.  The  physician  then  com- 
menced an  action  before  a  justice  of  the  peace  to  re- 
cover the  value  of  his  services  in  the  treatment  com- 
plained of  from  the  patient,  who  was  plaintiff  in  the 
malpractice  suit.  The  patient  appeared  in  the  suit  in- 
stituted before  the  justice  of  the  peace  for  the  recovery 
of  fees,  but  interposed  no  defense,  and  judgment  was 
entered  against  him  to  the  amount  of  six  dollars  and 
fifty-eight  cents.  The  physician,  then,  as  a  defense  to 
the  patient's  action  for  damages  from  malpractice,  set 


EECOVERY  OF  COMPENSATION.  221 

up  the  judgment  rendered  by  the  justice  of  the  peace. 
Upon  the  principle  above  given  the  supreme  court,  and 
afterward  the  court  of  appeals,  held  that  the  judgment 
of  the  justice  was  a  complete  bar  to  the  action  for  dam- 
ages.* The  courts  of  West  Virginia  have  declared  them- 
selves in  harmony  with  this  decision ;f  so  also  have 
those  of  New  Jersey  J  and  Arkansas.*  The  contrary 
view  has,  however,  been  taken  by  the  courts  of  Indiana,]  ] 
Ohio,'^  and  Wisconsin.O 

Collections  from  Estates  of  Decedents. — There  now 
remains  to  be  considered  before  closing  this  chapter  the 
manner  of  presenting  and  proving  claims  for  physi- 
cians' fees  against  estates  of  deceased  persons,  together 
with  a  general  survey  of  the  law  regulating  the  sub- 
ject. 

The  administration  of  estates  is  governed  in  each 
State  by  statutes  which  are  more  or  less  peculiar  to  the 
particular  jurisdiction.  It  will  therefore  be  impossible 
in  a  limited  space  to  give  more  than  a  very  general  view 
of  the  manner  of  administration,  but  the  proving  of 
claims,  when  contested,  in  which  the  doctor  is  most  deep- 

*  Gates  vs.  Preston,  41  N.  Y.,  113. 

■|-  Lawson  vs.  Conway,  37  W.  Va.,  159,  16  S.  E.  Rep.,  564. 

I  Ely  vs.  Wilbur,  49  N.  J.  L.,  685. 

*  Dale  vs.  Donaldson  Lumber  Co.,  48  Ark.,  188. 

II  Goble  vs.  Dillon,  86  Ind.,  827. 

■^  Sykes  vs.  Bonner,  1  Cinn.  R.,  464. 
()  Ressequie  vs.  Byers,  52  Wis.,  650. 


222   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ly  interested,  is  governed  by  pretty  much  the  same  law 
in  all  jurisdictions,  and  will  therefore  be  examined  more 
particularly. 

The  first  step  in  the  administration  of  the  estate  of 
a  deceased  patient  or  debtor  in  which  the  doctor  is  inter- 
ested is  that  at  which  the  time  arrives  for  presenting 
his  claim  for  payment.  Of  the  arrival  of  this  time  he  is 
usually  given  notice,  either  actual  or  constructive.  In 
the  presenting  of  such  claims  the  doctor  should  always 
be  j)rompt,  remembering  that  unless  the  claim  is  pre- 
sented within  the  period  fixed  by  the  law  of  his  State 
it  is  totally  barred — at  least,  such  is  the  law  of  many 
States — and  that,  should  the  law  of  his  State,  being 
more  indulgent,  allow  him  to  present  his  claim  after 
the  first  period  fixed  has  expired,  he  will  be  entitled  to 
his  proportion  of  only  those  assets  which  remain  after 
the  payment  of  the  claims  filed  and  allowed  at  the 
proper  time.  The  time  fixed  for  the  presentation 
of  claims  refers  as  well  to  those  not  due  as  to  those 
which  have  already  accrued.  In  some  jurisdictions 
future  debts  of  the  estate  are  paid  at  their  present 
value  at  the  same  time  as  the  other  debts;  in 
others,  arrangements  are  made  for  paying  them  at 
maturity. 

Claim,  by  whom  Presented. — The  claim  against  a 
decedent's  estate  must  be  filed  or  presented  by  the  person 
who  owns  it  or  has  an  interest  in  it,  with  the  right  of 


RECOVERY  OF  COMPENSATION.  223 

enforcing  its  collection,*  or  by  his  lawfully  authorized 
agent,  f 

Claim,  to  whom  Presented. — The  presentation,  to 
be  beyond  quesi^on,  must  be  made  to  a  legally  quali- 
fied administrator  or  dxecutor,  although  a  presen- 
tation to  an  executor  before  his  qualification  has 
been  held  valid.;]:  A  presentation  to  an  administra- 
tor after  his  discharge  is,  however,  of  no  effect.* 
When  there  are  two  or  more  executors  or  adminis- 
trators of  an  estate,  a  presentation  to  one  of  them  is 
sufficient.  1 1 

Presentation  of  Claim. — The  sufficiency  of  the  pres- 
entation of  a  particular  claim  is  a  question  that  can  be 
decided  in  the  light  of  the  statutes  existing  in  that  juris- 
diction, and  the  preparation  of  a  claim  for  presentation 
should  never  be  undertaken  without  first  consulting  the 
statutes  of  the  State  in  which  it  is  to  be  filed.  In  some 
States  the  claim  is  not  required  to  be  presented  in  writ- 
ing, although  this  is  probably  the  exception.  No  harm 
can  result  from  doing  more  than  the  law  requires  in  mat- 
ters of  this  kind,  and  the  claim  should  therefore  always 
be  carefully  prepared  in  writing,  describing  the  general 

*  McDowell  vs.  Jones,  68  Ala.,  25. 

f  Marshall  vs.  Perkins,  72  Me.,  343. 
%  Branch  Bank  vs.  Hallett,  12  Ala.,  671. 

*  Gibson  vs.  Mitchell,  16  Fla.,  519. 
II  Dean  vs.  Duffield,  8  Tex.,  235. 


224    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

nature,*  amount,  and  value  of  the  services  with,  as  much 
particularity  as  possible.  If  a  note  or  other  instrument 
has  been  given,  and  the  claim  is  filed  upon  such  instru- 
ment, then  a  copy  of  it  should  be  attached  to  the  claim. 

Claims  for  medical  services  should  always  be  verified 
by  affidavit  of  the  claimant  or  doctor,  sworn  to  before 
some  officer  having  authority  to  administer  oaths. 

The  affiant  should  in  his  affidavit  of  verification  set 
up  the  facts  that  he  is  a  physician  and  surgeon,  and 
has  been  duly  licensed  or  is  duty  qualified  under  the 
law  of  the  particular  State  to  practise  medicine  and 
surgery;  that  the  annexed  account  against  the  estate  of 

decedent,  amounting  to  the  sum  of dollars,  is  just, 

after  allowing  all  just  credits,  deductions,  and  set-offs, 
and  is  now  due  and  unpaid.  An  affidavit  setting  up 
these  facts  in  proper  form  will  comply  with  the  law  of 
nearly  every  State,  but  before  making  an  affidavit  the 
local  statutes  should  be  examined  and  their  require- 
ments carefully  followed. 

After  a  claim,  has  been  duly  presented  the  executor 
or  administrator  will  in  most  States  examine  the  same, 
and,  if  he  is  satisfied  that  it  is  a  just  and  proper  claim 
against  the  estate,  either  in  full  or  in  part,  he  will  allow 


*  The  description  of  the  nature  of  the  services  rendered  should  not 
be  so  specific,  when  filed  in  those  States  holding  professional  communi- 
cations privileged,  as  to  violate  the  law. 


RECOVERY   OP  COMPENSATION^.  225 

the  same,  either  at  its  face  or  pro  tanto,  accordingly  as  he 
is  convinced  of  its  merits. 

Should  the  claim  be  rejected,  either  in  full  or  in  part, 
the  claimant  is  required,  within  a  short  period  of  time, 
usually  ranging  from  three  months  to  one  year,  to  bring 
an  action  against  the  executor  or  administrator  to  re- 
cover the  claim  or  the  part  of  the  same  which  is  dis- 
allowed; otherwise  his  rights  in  the  premises  will  be 
barred. 

Advisability  of  Prosec-iiting  Claim. — At  this  point  it 
becomes  advisable  to  consider  the  condition  of  the  de- 
cedent's estate  and  determine  whether  or  not  there  are 
sufficient  assets  to  pay  the  claim  when  proved,  or  whether 
the  reward  will  be  so  small  as  not  to  justify  the  fight. 
Should  the  estate  be  solvent,  it  then  is  necessary  to  care- 
fully scrutinize  the  claim  and  determine  whether  or  not 
it  is  legally  valid,  and  if  valid,  whether  it  can  be  proved. 

Solvency  of  Estate. — In  considering  the  solvency  of 
the  estate  it  is  necessary  to  examine  the  order  of  the 
payment  of  debts,  for  the  estate  may  be  solvent  as  to  a 
certain  class  of  debts  and  pay  them  in  full,  while  those 
of  a  subsequent  class  would  receive  but  a  small  percent- 
age of  their  face  value,  or  perhaps  nothing  at  all.  At 
common  law  the  debts  of  the  decedent  were  paid  in  the 
following  order :  1.  The  necessary  funeral  expenses.  2. 
The  necessary  expenses  of  administration.  3.  Debts 
of  record  due  to  the  crown.     4.  Debts  of  record  due 


226    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

to  the  subjects^  which  included  judgments,  decrees, 
statutes,  and  recognizance.  5.  Debts  by  specialty  * 
founded  upon  a  valuable  consideration.  6.  Simple 
contract  debts  f  based,  upon  valuable  consideration. 
7.  Voluntary  bonds  or  covenants.  8.  Other  volun- 
tary debts. 

Under  this  scheme  the  physician's  bill  would  rank  in 
the  sixth  class,  unless  he  had  been  so  fortunate  as  to 
secure  a  bond  in  liquidation  of  it,  when  it  would  be  ad- 
vanced to  the  fifth  class,  or  had  reduced  it  to  judgment 
during  decedent's  lifetime,  in  which  case  he  would  enjoy 
the  advantage  of  belonging  to  the  fourth  class.  In  pay- 
ing these  debts,  if  the  estate  is  solvent,  all  the  creditors 
are  paid  in  full ;  but  if  there  is  a  deficiency  in  the  estate, 
all  the  creditors  of  each  class  are  paid  in  full  in  the 
order  of  their  class  until  the  estate  is  exhausted,  those 
coming  in  the  subsequent  class  or  classes  getting  noth- 
ing, or  perhaps  only  a  pro  rata  share  of  their  indebted- 
ness. To  illustrate,  under  the  above  scheme,  an  estate 
having  only  enough  money  to  pay  the  first  five  classes 
of  creditors  would  pay  them  in  full.  Should  there,  how- 
ever, be  a  sum  left  after  paying  the  first  five  classes,  but 
not  equal  to  the  total  sum  of  the  debts  owing  under  the 
sixth  class,  this  amount  would  then  be  divided  among  the 

*  Debts  by  specialty  are  those  arising  out  of  a  contract  or  other 
instrument  under  seul. 

f  Simple  contracts  include  all  not  under  seal,  whether  oral  or  written. 


RECOVERY  OP  COMPENSATION.  227 

creditors  of  the  sixth  class  in  proportion  to  the  amount 
of  their  claims. 

The  common  law  order  of  creditors  has  been  altered 
in  every  State,  the  preference  of  debts  growing  out  of 
specialty  contracts  over  those  arising  from  simple  con- 
tracts being  nearly  always  withdrawn;  in  some  States, 
however,  judgments  obtained  in  the  lifetime  of  deceased 
are  given  preference  over  simple  contract  debts. 

The  most  common  order  now  existing  in  the  United 
States  is  the  following:  1.  Funeral  expenses.  2.  Ex- 
penses of  administration.  3.  Expenses  of  last  illness. 
4.  Judgments  (abolished  in  a  number  of  States).  5. 
Public  debts.  This  order  in  many  States  ranks  after 
the  funeral  expenses  and  expenses  of  administration. 
6.  Simple  contract  liabilities. 

Probably  the  most  striking  change,  as  shown  by  com- 
parison of  the  order  existing  at  common  law  and  the 
one  last  above  given,  is  the  addition  of  the  class  "  ex- 
penses of  last  illness."  This  class  is  quite  generally  rec- 
ognized in  the  United  States,  but  it  is  not  universally 
accepted. 

What  is  Included  in  Expenses  of  Last  Illness. — Gen- 
erally speaking,  this  includes  the  necessary  medical  at- 
tendance and  nurse  hire  incurred  during  the  last  sick- 
ness. What  the  term  "  last  illness  "  means  is  a  question 
that  is  not  entirely  free  from  doubt.  We  have  an  early 
case  from  the  supreme  court  of  Louisiana  in  which,  by 


228    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

reason  of  the  peculiar  statute  defining  tlie  term  "  last 
sickness,"^  a  hardship  is  worked  upon  the  physician.  In 
that  case  the  patient  was  afflicted  with  a  fatal  disease, 
of  which  the  physician  would  have  heen  unable  to  cure 
him,  but  the  immediate  cause  of  the  patient's  death  was 
a  pistol  wound.  The  physician  would  have  been  en- 
titled to  a  privileged  claim  for  attending  the  patient 
during  that  which,  in  fact,  was  his  last  sickness;  but 
the  code  specified  that  "the  last  sickness  is  considered 
to  be  that  of  which  the  debtor  died,"  *  thus  defeating 
the  claimant's  preference. 

An  early  case  comes  to  us  from  South  Carolina  in 
which  a  preference  was  asked  for  nursing  during  the  de- 
cedent's "  last  sickness."  The  period  of  such  services  ex- 
tended through  the  last  year  of  the  decedent's  life,  dur- 
ing which  time  he  was  lingering  under  the  disease  which 
finally  terminated  his  existence.  The  refined  and  hu- 
mane sentiment  expressed  by  the  court  of  appeals  in  giv- 
ing their  interpretation  of  this  act  demands  a  quotation 
of  the  opinion :  "  The  issue  made  up  presented  the  ques- 
tion, and  the  jury  have  decided  that  the  services  were 
rendered  during  the  last  sickness. 

"  The  court  can  lay  down  no  rule  or  limitation  for 
the  duration  of  the  last  sickness  of  a  man,  nor  for  the 
degree  of  attention  to  be  paid  him.     A  wounded  man 

*  Succession  of  Whittaker,  7  Rob.  (La.),  91. 


EECOVERY  OF  COMPENSATION.  229 

may  linger  a  long  time  in  a  helpless  state,  and  chronic 
diseases  and  some  cancers  run  through  more  time  than 
a  year.  The  act  concurs  with  the  principles  of  Christian 
civilization,  and  is  remedial  of  a  common  want  and  ne- 
cessity— attention  and  services  during  last  sickness.  We 
must  therefore  construe  it  liberally,  and  let  it  inure  to 
its  proper  end,  the  full  relief  of  the  sick  and  the  in- 
firm. The  court  and  the  jury  were  the  proper  judges 
in  the  particular  instance;  and  they  appear  to  have  as- 
sessed the  amount  of  the  plaintiff's  account  with  justice 
and  discretion.^'  * 

In  the  matter  of  Eeese's  estate  the  evidence  showed 
that  Mr.  Eeese  received  an  injury  from  a  fall;  he  was 
attended  by  the  claimant  for  some  time,  and  so  far  re- 
covered as  to  be  able  to  attend  to  his  ordinary  business, 
and  the  claimant's  services  were  dispensed  with.  After- 
ward he  had  a  relapse  and  called  in  another  physician. 
Soon  after  that  he  died,  probably  from  the  effect  of  the 
fall,  from  which  he  never  entirely  recovered.  The  ques- 
tion arose  whether  claimant's  bill  was  entitled  to  prece- 
dence as  "  medical  attention  given  during  the  last  ill- 
ness." The  court  thought  that  the  clause  refers  to 
proximate  and  not  remote  causes  of  death,  and  that  the 
attendance  must  be  during  the  last  sickness,  but  could 
not  be  rendered  at  intermittent  periods. 

*  Percival  admr.  ads.  McVoy.     Dudley  (S.  C),  337. 


230    THE  LAW  IN"  ITS  RELATIONS  TO  PHYSICIANS. 

In  the  case  of  Huse  vs.  Brown,  exr.,  the  services 
were  rendered  by  the  claimant  between  January  19th 
and  June  28th.  The  decedent  was  suffering  from  a 
cancer  in  his  nose,  from  which  he  died  in  December 
following.  The  trial  court  instructed  the  jury  that 
if  they  should  decide  the  testator  died  of  the  cancer 
under  which  he  was  laboring  when  the  plaintiff  at- 
tended upon  him,  and  that  it  was  a  continuing  com- 
plaint or  disorder  until  his  death,  they  might  con- 
sider it  his  last  sickness.  The  supreme  court,  in 
referring  to  this  instruction,  said :  "  And  why  not, 
whether  any  such  instruction  had  been  given  to  them 
or  not?  It  would  seem  to  a  plain  understanding 
to  be  an  indisputable  fact  that  the  sickness  which 
is  terminated  by  the  death  of  a  patient  is  his  last 
sickness.  .  .  .  Sickness  assumes  so  many  forms,  and 
death  approaches  in  so  many  different  ways,  that  we 
know  not  how  to  lay  down  any  legal  principle  in  such 
cases  that  can  be  applied  by  way  of  construction  of  the 
words  '  last  sickness.'  What  is  to  be  considered  a  man's 
last  sickness  seems  to  be  a  question  properly  determin- 
able by  the  jury  upon  the  facts  in  each  case,  and  which 
can  seldom,  if  ever,  be  the  same  in  two  instances.  There 
may  probably  be  in  a  multitude  of  cases  a  strong  re- 
semblance. On  a  trial  for  homicide  it  is  always  a  ques- 
tion for  the  Jury  whether  the  deceased  died  a  natural 
death  or  in  consequence  of  the  act  of  the  person  ac- 


RECOVERY  OF  COMPENSATION.  231 

cnsed.  So  it  may  be  a  question  whether  the  sickness  of 
which  a  person  dies  is  the  same  under  which  he  la- 
bored when  confined  and  receiving  medical  aid  one  or 
two  months  before.  In  the  case  before  us,  the  questions 
as  to  the  cause  of  the  testator's  death  and  the  contin- 
uance of  his  sickness  have  been  settled  by  the  jury  whose 
business  it  was  to  settle  it."  * 

In  addition  to  the  above  opinion  no  comment  is  ne- 
cessary. Should  the  estate  be  insolvent,  and  the  serv- 
ices of  such  a  character  as  to  be  urged  as  a  preferred 
claim,  or  should  the  estate  be  solvent,  then  the  next 
question  to  be  considered  is  the  validity  of  the  rejected 
claim. 

Validity  of  Claim  against  Estate. — Generally  speak- 
ing, the  same  questions  may  arise  to  defeat  the  collec- 
tion of  a  claim  against  the  estate  of  a  deceased  person 
as  those  which  are  invoked  by  a  living  defendant  for  the 
same  purpose,  and  which  have  been  considered  in  the 
preceding  pages. 

There  are,  however,  a  few  questions  which,  from  the 
nature  of  the  case,  can  only  arise  in  the  class  of  cases 
now  imder  consideration.  For  instance,  it  has  been  ob- 
served that  the  husband  is  liable  for  the  medical  treat- 
ment of  his  wife;  for  that  reason  a  claim  for  services 
rendered  to  a  deceased  wife  should  be  presented  to  the 


*  Huse  vs.  Brown,  exr.,  8  Me.,  16*7. 


232    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

husband  for  payment,  and  not  filed  against  her  estate 
unless  the  husband  has  no  property  with  which  to  pay 
the  claim.* 

Where  services  are  rendered  a  decedent  under  the 
expectation  and  mutual  understanding  that  compensa- 
tion will  be  made  for  the  same  by  way  of  legacy,  or  other- 
wise, but  with  no  special  agreement  to  that  effect,  the 
person  rendering  such  services  may,  upon  the  failure  of 
decedent  to  provide  for  such  legacy,  collect  the  reason- 
able value  of  his  services  from  the  estate,  f  But  where 
the  services  are  performed  in  the  mere  expectation  or 
hope  of  a  legacy,  without  the  intention  of  making  any 
charge  therefor,  no  claim  can  be  maintained  against 
the  estate,  even  though  the  claimant's  hope  of  a  legacy 
is  not  realized.  I 

In  case  of  claims  of  the  sort  rendered  for  members 
of  the  claimant's  family  there  is  a  presumption  that 
the  services  were  intended  to  be  gratuitous;  this  pre- 
sumption, however,  may  be  rebutted  by  proof  of  an  ex- 
press contract  to  pay  therefor,  or  by  evidence  of  facts 
or  circumstances  showing  that  when  the  services  were 
rendered  the  parties  contemplated  a  pecuniary  compen- 
sation.   The  strength  of  this  presumption  is  dependent 

*  In  re  Weringer's  estate,  100  Cal.,  345,  34  Pac,  825. 
\  Starkey's  Appeal,  61  Conn.,  199;  Harrison  vs.  Lindley,  104  111., 
245  ;  Martin  vs.  Wripjht,  13  Wend  (N.  Y.),  460. 
X  Clark  vs.  Todd,  16  N.  Y.  Supp.,  491. 


RECOVERY   OF  COMPENSATION".  233 

upon  the  degree  of  relationship  becoming  weaker  as  the 
relationship  is  more  distant. 

Without  dwelling  further  upon  the  character  of  the 
claim,  which  is  regulated  by  the  same  law  as  that  regulat- 
ing claims  between  ordinary  litigants,  we  will  pass  to 
the  mode  of  proving  these  claims  against  estates  of  de- 
cedents, which  presents  new  difficulties. 

Proving  Contested  Claims  against  Estates  of  De- 
cedents.— The  manner  of  proving  ordinary  contested 
claims  has  been  carefully  examined  in  the  preceding 
pages,  together  with  the  amount  and  character  of  proof 
necessary  to  satisfactorily  show  the  indebtedness.  These 
same  rules  and  precedents  may  all  be  considered  as 
regulating  the  proof  of  a  claim  against  the  estate  of 
a  deceased  debtor,  with  the  single  and  important  excep- 
tion that  in  ordinary  claims  the  physician  himself  is  a 
competent  witness  to  testify  regarding  the  transactions 
out  of  which  the  indebtedness  arose;  while  in  a  claim 
of  this  sort  his  lips  are  sealed  and  he  can  only  prove 
his  case  by  submitting  his .  books  of  account  and 
by  producing  such  other  competent  witnesses  as 
may  have  knowledge  calculated  to  corroborate  the 
account. 

The  reason  for  this  condition  is  the  following:  At 
common  law  no  interested  party  to  a  suit  was  a  compe- 
tent witness  to  testify  in  his  own  behalf.  While  the 
older  law  Avorks  laud  the  good  sense  and  sound  policy  of 


234   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

this  rule,  it  does  not  seem  to  have  proved  satisfactory 
in  this  country,  for  it  has  been  abrogated  by  the  legisla- 
ture of  every  State,  so  as  to  permit  the  parties  to  a  suit 
to  freely  tell  all  they  know  of  the  transactions  or  con- 
ditions out  of  which  the  litigation  grows,  the  policy  now 
being  to  consider  the  party's  interest  as  affecting  the 
credibility  of  his  statements  rather  than  disqualifying 
him  from  making  such  statements.  It  is  obvious,  how- 
ever, that  whenever  a  suit  grows  out  of  a  transaction  one 
of  the  parties  to  which  is  dead  or  insane,  the  grossest 
injustice  might  be  done  by  permitting  the  other  party 
to  testify  regarding  the  nature  of  such  transaction,  or 
to  relate  any  conversation  or  communication  which  took 
place  between  them  relative  thereto.  For  this  reason 
the  modern  lawmakers,  in  sweeping  away  the  ancient 
rule  disqualifying  the  parties  as  witnesses,  have  gone 
only  so  far  as  to  permit  them  to  testify  where  they  are 
both  living  and  mentally  capable;  but  where  the  lips  of 
one  party  are  sealed  by  death  or  insanity  they  allow 
the  law  to  stand  as  before,  closing  the  mouth  of  the 
other. 

This  disability,  together  with  the  one  imposed  upon 
the  physician  by  the  law  relating  to  privileged  communi- 
cations, is  peculiarly  serious  to  him.  If  the  books  of 
account  disclose  the  nature  of  the  patient's  affliction  or 
the  character  of  the  treatment  prescribed,  then  they  are 
objectionable  in  those  States  having  statutes  protecting 


RECOVERY  OF  COMPENSATION.  235 

privileged  communications;  if,  on  the  other  hand,  the 
books  contain  no  such  information,  or  if  such  informa- 
tion is  recorded  in  characters  unintelligible  to  others 
than  the  physician,  then  they  are  subject  to  the  criti- 
cism of  being  too  indefinite  to  prove  the  account,  and 
must  be  supported  by  strong  corroborating  evidence. 
Moreover,  it  is  a  matter  of  very  grave  doubt  whether 
or  not  the  physician  may  even  prove  his  books  of  ac- 
count and  have  them  accepted  in  evidence  in  a  suit 
against  the  estate  of  a  deceased  or  insane  person.  In 
New  York  there  are  two  distinct  lines  of  conflicting  de- 
cisions, one  holding  that  the  physician's  books  are  ad- 
missible in  evidence  in  a  case  of  this  sort,*  and  the  other 
holding  that  the  books  can  not  be  received  in  evidence. f 
There  is  probably  no  subject  in  the  law  upon  which 
the  decisions  are  more  conflicting  and  the  rights  of 
the  respective  parties  more  uncertain  and  vague, 
nor  in  which  the  opportunities  offer  themselves  for 
the  lawyer  to  more  fully  exercise  his  knowledge, 
skill,  and  judgment  in  behalf  of  the  interests  of  his 
client. 

Is    Physician's    Wife    Competent    to    Prove    such 
Claims? — The  person  who  is  most  commonly  possessed 

*  Young  vs  Luce,  21  N.  Y.  Supp.,  225;  Clark  vs  Smith,  46  Barb., 
30;  West  vs.  Van  Tn^Xet  al,  119  N.  Y.,  620;  Wetmore  vs.  Peck,  19 
Alb.  L.  J.,  400. 

f  Ross  vs.  Ross,  6  Hun,  182 ;  Davis  vs.  Seaman,  64  Hun,  5V2. 
16 


236    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

of  information  necessary  to  corroborate  such  claims  is 
the  physician's  wife,  but  whether  or  not  she  is  a  com- 
petent witness  to  prove  the  facts  within  her  knowl- 
edge is  a  very  nice  question.  At  common  law  the  wife 
could  not  testify  for  or  against  her  husband  in  a  suit 
to  which  he  was  a  party.  This  rule  has  been  altered  in 
many  States,  but  not  in  all.  In  those  States  in  which 
the  rule  has  not  been  altered  the  wife  unquestionably  has 
no  right  to  testify.  In  those  States  in  which  the  disa- 
bility has  been  removed,  and  the  wife  permitted  to  tes- 
tify with  her  husband,  the  question  arises,  in  cases  of 
this  sort,  whether  her  interest  in  her  husband's  suit 
against  the  estate  of  the  decedent  is  such  as  to  render 
her  with  her  husband  an  interested  party,  and  there- 
fore an  incompetent  witness,  or  whether  she  shall  be 
considered  as  having  no  interest,  and  accordingly  per- 
mitted to  testify. 

The  reasons  given  by  the  courts  at  common  law  for 
denying  to  the  wife  the  privilege  of  testifying  in  a  suit 
to  which  the  husband  was  a  party  were,  first,  that  it  was 
against  public  policy,  such  an  act  being  thought  a  men- 
ace to  the  harmony  of  the  domestic  circle  and  a  viola- 
tion of  the  confidence  subsisting  between  husband  and 
wife ;  second,  because  of  the  identity  of  their  legal  rights 
and  interests.  If  this  second  reason  is  considered  ap- 
plicable to-day,  there  can  be  no  alternative  but  to  deny 
the  wife  the  privilege  of  giving  evidence  in  behalf  of  her 


RECOVERY  OP  COMPENSATION.  23Y 

husband's  claim ;  but  as  the  marked  tendency  of  legisla- 
tion during  the  past  half  century  has  been  toward  es- 
tablishing a  severalty  of  legal  rights  and  interest,  it  is 
not  surprising  that  some  of  our  courts  should  consider 
the  second  reason  so  greatly  weakened  as  to  regard  the 
wife  no  party  to  such  a  suit,  and  not  legally  interested 
in  the  result,  and  therefore  accept  her  evidence  in  sup- 
port of  the  claim.  This  is  a  question,  however,  upon 
which  the  courts  are  unfortunately  divided,  and  in  those 
States  where  a  decision  has  not  been  rendered  by  the 
court  of  last  resort  the  question  must  be  considered  as 
still  open. 

In  cases  of  this  sort  the  testimony  of  the  wife  has 
been  held  competent  in  the  following  States:  Mary- 
land,* Mississippi,!  ISTew  Hampshire, J  and  New  York.'* 
It  is  probable  that  the  rule  would  be  held  the  same  in 
Nebraska.  1 1 

On  the  other  hand,  such  testimony  has  been 
held  incompetent,  and  rejected  by  the  courts  of 
last   resort   in  the   following   States:    Illinois,'^   Indi- 


*  Trahern  vx.  Colburn,  exr.,  63  Md.,  99. 

f  Rushing  vs.  Rushing,  admr.,  52  Miss.,  330. 
X  Clements  v.i.  Marston,  52  N.  H.,  31. 

*  Whitman  vs.  Foley,  125  N.  Y.,  651 ;  Porter  vs.  Dunn,  131  N.  T., 
814. 

II  Wylie  vs.  Charlton,  43  Neb.,  840,  62  N.  W.  Rep.,  220. 
^  Bevclot  vs.  Lestrade,  153  111.,  625. 


238    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ana,*  Iowa,f  Maine,!  Pennsylvania,*  and  West  Vir- 
ginia. || 

The  claimant,  upon  producing  satisfactory  proof  of 
the  legality  and  justness  of  his  claim,  is  entitled  to  a 
judgment  for  the  amount  he  has  shown  to  be  due  to 
him,  which  judgment  the  executor  or  administrator 
must  pay  in  due  time,  either  in  full  or  in  part,  as  the 
assets  of  the  estate  may  justify. 

*  Scherer  vs.  Ingerman,  110  Ind.,  428.  This  case  simply  declares 
the  wife  iDCompetent  because  the  statute  provides  that  she  shall  be  in 
such  cases. 

f  Muir  vs.  Miller,  82  Iowa,  700.     Code  excludes  such  evidence. 
X  Berry  vs.  Stevens,  69  Me.,  290. 

#  Sutherland  vs.  Ross,  140  Pa.,  3Y9. 

I  Kilgore  vs.  Hanley,  21  W.  Va.,  451. 


CHAPTEE   VII. 

CIVIL   MALPRACTICE,   INCLUDING   GENERAL   LIABILITY   OF 
PHYSICIAN   TO  PATIENT. 

Purpose  of  the  Chapter. — The  purpose  of  this  chap- 
ter is  to  make  a  careful  ezamination  of  the  law  govern- 
ing the  civil  liability  of  physicians  and  surgeons,  illus- 
trating its  application  by  particular  instances  and  cases 
as  fully  as  the  limit  of  the  work  will  permit.  The  exami- 
nation will  extend  through  the  subject  of  civil  malprac- 
tice, and  will  also  include  those  instances  of  civil  liabil- 
ity arising  from  acts  either  of  omission  or  of  commission 
which  do  not  amount  to  malpractice. 

No  Liability  for  Refusal  to  take  a  Case. — In  some 
localities  there  is  a  popular  belief  that  a  physician,  by 
reason  of  the  rights  and  privileges  which  he  enjoys  as 
such,is  bound  to  undertake  the  treatment  of  any  patient 
who  requests  from  him  professional  services.  There' is 
in  the  law  no  foundation  whatever  for  this  belief.  A 
well-known  law  writer,  in  referring  to  the  subject,  says : 
"  ISTo  question  can  exist  as  to  the  legal  right  of  a  physi- 
cian, unless  he  be  an  officer  of  the  government  charged 
with  specific  duties,  which  he  thereby  violates,  to  decline 

239 


240    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

to  take  charge  of  a  particular  case."  *  But  having  once 
assumed  charge  of  a  case,  we  have  observed  in  a  preced- 
ing chapter,  f  he  immediately  sets  in  operation  numer- 
ous implied  contracts  and  presumptions  of  law  regarding 
his  qualifications  to  properly  treat  that  case,  and,  should 
he  fail  to  fulfill  these  implied  contracts,  or  comply  with 
the  presumptions  of  law,  a  civil  liability  immediately 
arises  in  favor  of  the  patient  to  the  amount  of  damages 
thereby  sustained. 

General  Professional  Eeqnirements. — Perhaps  the 
most  fundamental  of  the  professional  requirements  that 
we  have  heretofore  observed  are  that  one  who  under- 
takes to  render  medical  services,  holding  himself  out  as 
a  physician  or  surgeon,  will  be  held  by  the  law,  first, 
to  possess  a  reasonable  degree  of  knowledge,  skill,  and 
experience;  second,  to  exercise  ordinary  care  and  dili- 
gence; and  third,  to  use  his  best  judgment  in  all  cases 
of  doubt  as  to  the  best  course  of  treatment.  J 

Application  of  Rule. — ^Whether  or  not  the  amount 
of  knowledge  displayed  or  the  degree  of  skill,  care,  and 
judgment  exercised  is  sufficient  in  any  case  to  fulfill  the 


*  Wharton  on  Negligence,  §  'JSl. 

f  See  p.  60,  d  seq. 

X  Lei^ihton  vs.  Sargent,  27  N.  H.,  460;  McNevins  vs.  Lowe,  40  III, 
209;  Long  vs.  Morrison,  14  Ind..  695;  Branner  vs.  Stormont  et  al.,  9 
Kan..  51;  Patten  vs.  Wiggins,  51  Me,  594;  Wood  ds.  Clapp,  4  Sneed, 
65 ;  Eitchey  vs.  West,  23  lU.,  385. 


CIVIL  MALPRACTICE.  241 

requirements  of  the  law  is  a  question  of  fact  for  the 
jury  to  determine  from  the  evidence  produced  at  the 
trial.  To  illustrate  the  application  of  the  rule  we  will, 
as  in  previous  chapters,  examine  the  records  of  a  few 
prominent  trials.  In  the  case  of  Boldt  vs.  Murray  * 
the  patient  was  suffering  with  a  fracture  of  the  inner 
condyle  of  the  humerus.  The  evidence  does  not  tend 
to  show  that  the  bone  was  not  properly  set.  The  evi- 
dence of  the  plaintiff  was  to  the  effect  that  the  bandage 
was  not  put  on  the  arm  in  the  approved  manner,  but 
was  rolled  from  the  upper  to  the  lower  part  of  the  arm, 
and  so  tightly  as  to  prevent  circulation,  and  that,  al- 
though the  hand  and  arm  became  swollen  and  the  latter 
discolored,  the  bandage  was  left  on;  and  that,  by  reason 
of  the  improper  bandaging  and  the  permitting  of  the 
bandage  and  splints  to  remain  on  in  such  condition,  the 
circulation  of  blood  was  cut  off,  and,  as  a  consequence, 
the  flesh  of  the  arm,  being  deprived  of  sustenance, 
sloughed  off.  The  physician,  on  the  other  hand,  gave 
evidence  to  the  effect  that  the  arm  was  properly  band- 
aged, and  that  the  unfortunate  result  of  the  injury  was 
caused  by  the  failure  of  the  patient  and  his  parents  to 
obey  the  physician's  directions,  etc.  Here  was  a  case 
of  direct  conflict  of  evidence  from  which  it  was  the  prov- 
ince of  the  jury  to  determine  the  real  facts.    The  court 

*  Boldt  vs.  Murray,  2  N.  Y.  S.  R.,  232. 


242    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

instructed  the  jury  upon  the  law  applicable  to  the  ease, 
as  set  forth  in  the  above  rule,  whereupon  they  retired 
and  found  a  verdict  for  the  plaintiff,  evidently  believ- 
ing the  evidence  given  by  the  plaintiff  and  disregarding 
that  given  by  the  defendant.  The  judgment  based  upon 
this  verdict  the  general  term  of  the  supreme  court  re- 
fused to  reverse,  stating  in  effect  that  the  evidence  of  the 
plaintiff',  if  true,  was  sufficient  to  show  that  the  defend- 
ant did  not  come  within  the  legal  requirements  as  to 
knowledge,  care,  and  judgment,  and  that  as  to  the  truth 
of  such  evidence  the  jury  was  the  proper  judge. 

In  the  case  of  Link  vs.  Sheldon  *  et  al.,  the  plain- 
tiff, a  lad  of  thirteen  years  of  age,  had  fallen,  striking 
with  such  force  upon  his  hand  and  forearm  as  to  pro- 
duce a  CoUes's  fracture  and  a  dislocation  of  the  ulna. 
The  defendants  were  called  and  dressed  the  arm,  placing 
a  certain  metallic  splint,  which  should  have  been  adjust- 
ed to  the  palmar  surface  of  the  hand, upon  its  back.  The 
plaintiff's  evidence  was  to  the  effect  that  the  bandaging 
of  the  hand  and  arm  had  been  so  tight  as  to  cause  an  in- 
flammation and  resultant  suppuration,  which  in  healing 
drew  in  the  thumb  and  permanently  deformed  the  hand. 

The  accident  took  place  on  Friday.  It  appears  that 
the  patient's  parents  became  dissatisfied  with  the  de- 
fendants' treatment  of  the  case,  and,  hearing  of  the  suc- 

*  Link  vs.  Sheldon,  136  N.  Y.,  1. 


CIVIL  MALPRACTICE.  243 

cess  of  another  doctor,  employed  him  and  dismissed  the 
defendants  on  the  following  Tuesday  morning,  and  that 
the  defendants  had  nothing  further  to  do  with  the  case. 

The  evidence  adduced  by  the  defendants  was  to  the 
effect  that  the  injury  was  not  an  ordinary  Colles's  frac- 
ture, but  that  the  position  of  the  bones  was  so  reversed 
that  the  splint  had  to  be  used  as  applied  by  them;  that 
the  physical  condition  of  the  patient,  in  addition,  was 
bad  from  f everishness ;  that  the  bandages  were  rightly 
adjusted;  that  the  great  inflammation  discovered  when 
the  doctor  who  succeeded  to  the  case  was  called  in  was 
due  to  their  having  been  prevented  by  the  parents  from 
redressing  the  arm  on  Monday  evening,  as  they  desired 
to  do;  and,  finally,  that  had  the  succeeding  physician 
properly  treated  the  hand  In  its  inflamed  and  swollen 
condition  by  lancing  instead  of  poulticing,  no  distorted 
condition  of  the  hand  would  have  resulted. 

The  jury  returned  a  verdict  for  the  plaintiff  to  the 
amount  of  four  thousand  dollars.  The  court  of  ap- 
peals, in  refusing  to  reverse  the  judgment,  said :  "  The 
evidence  upon  the  material  points  was  conflicting.  There 
was  more  or  less  disagreement  among  the  doctors;  but  it 
is  impossible  to  say  that  there  was  not  evidence  tending 
to  establish  a  lack  of  skill,  or  some  neglect,  on  the  part 
of  the  defendants.  It  was  not  necessary,  in  order  to 
sustain  the  action,  that  there  should  have  been  proof 
of  gross  culpability  upon  the  part  of  the  defendants. 


24:4   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS.      ' 

It  was  sufficient  to  warrant  a  verdict  against  them  that 
there  was  evidence  of  any  failure  on  their  part  to  exercise 
proper  care,  or  of  any  neglect  in  the  discharge  of  the 
duty  they  had  assumed  toward  the  plaintiff." 

While  the  legal  effect  upon  the  liability  of  the  de- 
fendants, from  dismissing  them  at  an  early  stage  in  the 
treatment  of  the  case  and  employing  another  physician, 
is  not  pertinent  to  the  question  now  in  consideration,  it 
is  perhaps  of  sufficient  interest  to  justify  digressing. 
In  considering  this  question  in  the  above  case  the 
court  laid  down  the  rule  that  the  liability  of  the 
defendants  in  such  a  ease  extends  not  only  to  in- 
juries directly  resulting  from  the  ignorant,  unskillful, 
or  negligent  treatment  to  which  they  have  subjected 
the  patient  previous  to  the  time  of  their  discharge, 
but  they  are  liable  as  well  for  all  injuries  directly 
resulting  from  such  improper  treatment,  even  though 
they  are  not  manifest  until  after  the  case  has  passed  to 
the  care  of  another  physician.  If,  however,  such  inju- 
ries are  the  result  of  any  other  cause  than  that  of  the 
improper  treatment  of  the  defendants',  they  are  not 
liable  therefor.  Upon  this  point  the  trial  judge  charged 
that  "  if  the  jury  find,  from  the  evidence,  that  it  is  just 
as  probable  that  the  injury  complained  of  was  caused 
either  by  the  original  severe  injury,  or  by  the  interfer- 
ence of  the  plaintiff's  parents  (in  refusing  to  allow  the 
defendants  to  redress  the  arm),  or  by  the  subsequent 


CIVIL  MALPRACTICE.  245 

manipulations  and  treatment  of  Dr. (who  succeed- 
ed defendants  in  the  treatment  of  the  case)  and  others, 
as  from  the  pretended  tight  bandaging,  it  is  the  duty  of 
the  jury  to  fmd  a  verdict  for  the  defendants."  This  in- 
struction was  held  by  the  court  of  appeals  to  properly 
state  the  law. 

After  laying  down  the  general  rule  requiring  a  rea- 
sonable degree  of  competency,  care,  and  judgment,  the 
court,  in  commenting  upon  the  evidence  in  the  case  of 
Kitchey  vs.  West,*  said :  "  The  concurring  evidence  of 
all  of  the  physicians  shows  that  the  splints  and  bandages 
were  not  properly  applied.  Had  they  extended  below 
the  wrist,  the  evidence  seems  to  show  that  they  would 
have  confined  the  wrist  to  its  proper  place.  It  is  prob- 
able that  such  a  practice  would  have  tended,  notwith- 
standing the  fracture,  to  have  held  the  broken  bone  more 
nearly  to  its  place  until  a  union  was  formed,  and  thus 
have  prevented  to  some  extent,  if  not  altogether,  the  de- 
formity and  disability  to  use  the  hand.  The  physicians 
also  agree  that  the  splints  employed  were  not  of  suflfi- 
cient  width,  as  well  as  too  short,  for  the  treatment  of  the 
fracture,  even  if  they  had  been  midway  between  the 
wrist  and  elbow,  as  he  supposed.  And  from  this  evi- 
dence it  would  seem  that  there  must  have  been  a  want 
of  ordinary  skill,  or  great  negligence,  in  the  treatment 

*  Ritchey  vs.  West,  23  111.,  385. 


246    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

of  the  case,  in  not  detecting  the  dislocation  of  the  wrist 
joint.  The  physicians  all  agree  that  this  portion  of  the 
injury  could  have  been  easily  detected  by  ordinary  care 
and  skill,  and  the  fact  that  it  had  been  and  was  still 
dislocated  was  afterward  detected  by  a  person  who  did 
not  profess  surgery  or  skill  in  such  matters,  and  had 
previously  had  only  slight  experience  in  cases  of  frac- 
tured limbs.  Then,  if  the  evidence  of  the  medical  men 
who  were  examined  as  witnesses  is  to  be  credited,  and  it 
is  supported  by  the  fact  that  the  dislocation  of  the  joint 
was  detected  by  a  person  professing  to  have  no  skill, 
there  was  a  want  of  ordinary  care  or  skill,  or  both,  mani- 
fested in  the  treatment  of  the  case.'* 

Failure  to  Discover  Extent  of  Injury. — It  must  not, 
however,  be  inferred  from  the  preceding  case  that  the 
failure  of  the  surgeon  to  discover  a  serious  injury  is  a 
fact  from  which  incompetency  or  negligence  will  neces- 
sarily be  inferred.  This  is  well  illustrated  by  the  case 
of  Gedney  vs.  Kingsley.*  In  this  case  the  patient  was 
thrown  from  her  carriage  and  sustained  a  fracture  of 
her  right  arm.  The  defendant,  a  physician,  was 
called  and  made  an  examination,  but  did  not  dis- 
cover the  nature  of  the  injury,  and  supposed  it  to  be 
no  more  than  a  bad  bruise.  Upon  the  second  visit  he 
informed  the  patient  that  her  arm  needed  further  atten- 

*  Gedney  vs.  Kingsley,  41  N.  Y.  S.  R.,  794,  16  N.  Y.  Supp.,  "792. 


CIVIL  MALPRACTICE.  247 

tion,  but  she  thought  she  was  getting  on  toward  recov- 
ery, and  said  that  she  would  send  for  him  if  she  needed 
him  further.  The  arm  became  very  greatly  swollen^  and 
it  was  finally  discovered  that  one  of  the  bones  was  frac- 
tured. By  reason  of  the  delay  in  discovering  the  frac- 
ture the  injury  became  in  a  measure  irreparable.  As 
usual,  the  parties  differed  in  their  remembrance  of  the 
facts.  A  physician  who  had  examined  the  arm  before 
the  defendant,  supported  the  defendant  in  his  statement 
that  the  extent  of  the  swelling  prevented  an  Examination 
which  was  needed  to  discover  the  fracture.  The  medical 
experts  also  differed  upon  the  question  whether  a  skillful 
surgeon  ought  to  have  discovered  the  fracture,  but  all 
agreed  that  the  swelling  should  have  been  reduced;  but, 
as  to  this,  the  court  very  properly  expressed  the  opinion 
that  if  the  patient  prevented  that  by  directing  the  physi- 
cian to  make  no  more  calls  until  he  was  notified,  he  could 
not  be  blamed  for  omission  to  diligently  look  after  the 
case.  The  jury  found  that  the  arm  was  so  swollen  that  a 
complete  assurance  of  the  extent  of  the  injury  could  not 
be  made  from  a  careful  and  skillful  examination,  and 
that  the  swelling  was  suffered  to  continue  because  the 
physician  was  told  to  wait  until  he  was  sent  for  to  at- 
tend further.     They  consequently  exonerated  him. 

Failure  to  Reduce  Dislocation. — While  in  some  cases, 
like  the  one  above  given,  the  question  of  the  physician's 
liability  for  unskillfulness  and  negligence  grows  out  of 


248    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

his  failure  to  discover  the  extent  of  the  injury  sus- 
tained, it  more  frequently  happens  that  the  question  of 
liability  arises  where  the  character  and  extent  of  the  in- 
jury are  discovered,  but  the  fact  of  whether  or  not  the 
physician  effected  the  relief  attempted  is  disputed. 
Questions  of  this  sort  frequently  arise  in  cases  of  dislo- 
cation in  which  the  injury  is  treated  with  supposed  suc- 
cess, but  after  weeks,  or  perhaps  months,  it  is  found 
that  the  bones  are  not  in  proper  place.  Upon  the  trial 
of  this  class  of  cases  the  testimony  is  almost  always  con- 
flicting, that  of  the  patient  tending  to  show  that  the 
dislocation  was  never  properly  reduced,  while  that  of 
the  physician  positively  denies  the  failure  to  properly 
reduce  the  dislocation,  and  accounts  for  the  bones  sub- 
sequently being  found  to  be  dislocated  by  negligence  of 
the  patient  or  his  failure  to  observe  instructions,  or 
other  similar  cause. 

In  the  case  of  Rowe  vs.  Lent,*  the  patient  suffered 
a  dislocation  of  the  right  shoulder.  The  family  physi- 
cian, after  considerable  effort  and  some  difficulty,  suc- 
ceeded, as  he  claimed  and  still  claims,  in  reducing  the 
dislocation.  The  injury  occurred  in  January,  and  the 
physician  continued  to  attend  the  patient  until  July  24th 
following,  when  he  claimed  a  cure  had  been  effected. 
He  frequently  saw  the  patient,  however,  and  examined 

*  Rowe  vs.  Lent,  42  N.  Y.  S.  R.,  483. 


CIVIL  MALPRACTICE.  249 

the  shoulder  between  this  date  and  August  13th,  when 
the  patient  left  his  home,  going  to  the  seashore  to  take 
sea  baths.  On  about  the  14th  of  August  the  patient  was 
examined  at  a  New  York  city  hospital,  and  it  was  found 
that  his  shoulder  was  dislocated.  The  surgeon  in  charge 
made  an  attempt  to  reduce  the  dislocation,  but  was  un- 
successful. The  injury  still  continues  and  is  conceded  to 
be  permanent.  Upon  the  question  of  whether  or  not  the 
dislocation  had  ever  been  properly  reduced,  there  was 
some  non-professional  testimony  introduced  at  the  trial 
that  the  right  shoulder  did  not  look  like  the  left;  but 
some  of  the  expert  testimony  tended  to  show  that  the 
difference  in  appearance  might  exist  even  if  the  disloca- 
tion had  been  properly  reduced. 

The  case  was  submitted  to  the  jury,  who  found  for 
the  plaintiff.  The  general  term  of  the  supreme  court 
refused  to  disturb  the  verdict  of  the  jury,  and,  after  lay- 
ing down  the  general  rule  that  a  physician  must  possess 
a  reasonable  degree  of  learning  and  skill,  said :  "  The 
test,  however,  seems  to  be,  whether  in  the  case  on  trial 
the  requisite  skill,  care,  and  diligence  were  employed, 
and  not  whether  the  practitioner  is  reputed  to  possess 
such  skill.  But  the  surgeon  is  not  necessarily  charge- 
able with  want  of  the  requisite  skill,  or  negligence  and 
want  of  care,  simply  because  he  does  not  succeed  in  ac- 
complishing the  desired  result.  Human  skill  can  not 
relieve  all  infirmities,  ills,  or  injuries  to  which  mankind 


250    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

is  subject,  and  the  only  test,  therefore,  that  can  be 
applied  is  whether  in  a  given  case  the  surgeon  has  ex- 
ercised reasonable  skill  and  attention  in  his  treatment 
of  the  patient  who  has  placed  himself  under  his  care, 
and  whom  the  latter  has  undertaken  to  treat.  As  we 
have  seen  in  this  case,  that  the  question  was  before  the 
jury  upon  evidence  somewhat  conflicting,  and  the  whole 
case  was  fully  and  fairly  left  to  them  by  the  charge  of 
the  trial  judge  given  in  an  able  and  impartial  manner, 
to  which  no  exception  was  taken  by  the  counsel  for  the 
defendant,  and  the  jury  upon  this  conflicting  evidence 
found  in  favor  of  the  plaintiff.  While  perhaps  they 
might,  upon  this  evidence,  have  found  either  for  the 
plaintiff  or  defendant,  there  is  sufficient  evidence  in  sup- 
port of  their  conclusion  to  uphold  a  verdict,  and  the. 
court  upon  appeal  can  not  say  their  verdict  was  either 
against  the  evidence  or  unsupported  thereby."  The 
foregoing  quotation  is  made  at  this  considerable  length 
for  the  reason  that  it  so  clearly  marks  the  policy  of  the 
courts  and  of  the  law  in  suits  of  this  character. 

An  interesting  suit,  based  upon  the  alleged  failure 
of  the  physician  to  reduce  a  dislocation,  is  that  of  Car- 
penter vs.  Blake,  decided  by  the  supreme  court  of  New 
York  in  1871.  The  patient  was  thrown  from  a  horse 
and  her  elbow  joint  dislocated.  The  defendant  was 
called  to  attend  the  injury  and  claims  that  he  properly 
reduced  the  dislocation ;  the  patient,  on  the  other  hand. 


CIVIL  MALPRACTICE.  251 

claims  that  he  did  not  succeed  in  restoring  the  bones  to 
their  places,  or,  if  he  did  succeed  in  the  original  opera- 
tion, that  he  failed  to  employ  proper  measures  to  keep 
them  there,  and  upon  this  theory  brought  suit. 

The  evidence  produced  at  the  trial  was  voluminous 
and  conflicting.  The  injury  occurred  on  June  28th,  and 
the  defendant  was  called  at  once  to  attend  the  injury. 
The  plaintiff  testified  that  the  physician  simply  drew  the 
arm  around  his  knee  and  placed  it  on  a  pillow  at  her 
side,  bent  at  nearly  a  right  angle ;  that  she  did  not  hear 
the  characteristic  "  snap  "  caused  by  the  bones  falling 
into  place,  and  that  there  was  no  relief  from  the 
pain. 

The  defendant  testified  that  upon  setting  the  joint 
he  extended  and  rotated  the  arm  and  applied  his  hand 
to  the  joint,  satisfying  himself  that  the  bones  were  in 
place;  the  plaintiff  denied  that  he  applied  either  of 
these  tests.  It  is  conceded  that  the  defendant  did  not 
measure  the  arm  to  determine  beyond  peradventure  that 
the  bones  were  in  proper  position.  The  plaintiff  and 
other  witnesses  testified  that  they  observed  a  protuber- 
ance at  the  elbow  joint  the  night  of  the  injur}^,  and 
compared  it  with  the  other  elbow  and  inquired  what  it 
was.  It  appeared  that  the  arm  retained,  when  not  con- 
trolled by  splints,  about  the  same  position  it  was  in 
after  the  first  attempt  to  reduce  the  dislocation,  and 

at  no  time  coald  the  plaintiff  move  it  without  pro- 

17 


252   THE  LAW  m  ITS  RELATIONS  TO  PHYSICIANS. 

ducing  severe  pain.  The  defendant  insisted  that  she 
must  move  it.  When  she  attempted  it,  the  pain  was  so 
great  she  had  to  call  for  help,  and  even  then  had  to 
cease  the  attempt  because  of  the  sufliering  it  caused. 
This  was  known  to  the  defendant,  and  yet  it  did  not 
seem  to  put  liim  on  inquiry  whether  he  had  not 
failed  to  properly  set  or  treat  the  arm.  The  plaintifE 
was  satisfied  that  the  joint  was  never  properly  set,  and 
so  told  the  defendant;  and,  to  ascertain  whether  or  not 
her  suspicions  were  correct,  called  other  doctors.  This 
was  in  the  latter  part  of  August,  about  two  months  after 
the  injury  was  received.  The  defendant  deserted  the 
case  at  about  this  time.  Other  physicians  were  then 
called,  and,  after  rendering  the  patient  unconscious  by 
the  use  of  anaesthetics,  reduced  the  dislocation.  The 
bones,  however,  soon  returned  to  their  former  position, 
and  have  remained  there  ever  since.  The  jury  upon  this 
evidence  found  for  the  plaintiS,  assessing  the  dam- 
ages sustained  at  two  thousand  dollars. 

Failure  to  Apply  Extension. — In  the  case  of  Barnes 
vs.  Means  *  the  improper  treatment  complained  of  was 
the  failure  of  the  physician  to  properly  extend  the 
broken  limb  from  which  thepatientwas  suffering,  where- 
by the  wound  healed  improperly.  The  evidence  showed 
that  the  fracture  of  the  larger  bone  was  oblique,  and 

*  Barnes  vs.  Means,  82  HI.,  379. 


CIVIL  MALPRACTICE.  253 

near  the  upper  part  of  the  lower  third  of  the  limb ;  the 
fracture  of  the  smaller  bone  was  transverse,  and  was 
from  two  to  three  inches  above  the  ankle  joint.  The 
defendants  were  called  at  once  and  dressed  the  injury 
within  twenty  or  thirty  minutes  after  the  bones  were 
broken,  but  did  not  use  extension  or  counter-ex- 
tension. The  excuse  made  by  the  defendants  for  not 
extending  the  limb  and  using  counter-extension  to  hold 
it  in  place  was  that  the  extreme  tenderness  and  swelling 
would  not  permit  of  their  so  doing,  and  they  introduced 
evidence  to  show  that  some  days  after  the  fracture  was 
adjusted  they  did  attempt  extension  and  counter-exten- 
sion, but  that  the  patient  could  not  endure  it.  Upon 
the  question  of  the  condition  of  the  limb  at  the  time 
the  injury  was  first  adjusted  there  were  several  wit- 
nesses who  were  then  present  and  who  testified  that  no 
swelling  had  then  occurred. 

An  expert  testified  before  the  jury  that  the  shorten- 
ing was  caused  by  the  lapping  of  the  bones;  that  the 
first  duty  of  the  surgeon  was  to  bring  the  bones  to  their 
proper  position  by  extension  and  counter-extension. 
If  necessary  he  placed  the  patient  under  the  influence 
of  chloroform,  and  that  if  the  patient  would  not  allow 
a  proper  adjustment  of  the  fracture  he  would  abandon 
the  case. 

The  trial  judge,  in  instructing  the  jury  upon  the 
law  applicable  to  the  case,  said :  "  That  if  you  believe. 


254    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

from  the  evidence  that,  in  the  treatment  of  fractures 
of  bones,  regard  should  be  had  to  the  direction  in  which 
the  break  occurred;  and  if  the  jury  believe,  from  the 
evidence,  that  the  fracture  of  the  bones  of  the  plaintiff, 
which  the  defendants  treated,  required  extension  in 
order  to  secure  the  proper  adjustment  of  the  parts  to 
each  other,  and  that  the  defendants  did  not  use  any 
means  to  secure  extension,  but,  by  want  of  skill,  or  by 
negligence,  suffered  the  broken  fragments  to  be  or  be- 
come displaced,  and  that  thereby  the  plaintiff  has  suf- 
fered and  become  permanently  lame  and  disabled,  as 
charged  in  the  declaration,  you  should  find  the  defend- 
ants guilty."  Upon  this  instruction,  which  was  held  to 
be  a  correct  statement  of  the  law  applicable  to  the  case, 
the  jury  found  for  the  plaintiff  and  assessed  the  dam- 
ages at  one  thousand  dollars. 

The  foregoing  cases  being  thought  sufficient  to  illus- 
trate the  application  of  the  general  rule  of  liability,  a 
more  critical  examination  will  now  be  made  as  to  the 
particular  requirements  of  the  rule. 

Degree  of  Knowledge,  Skill,  and  Care  Required. — 
The  part  of  the  general  rule  upon  which  the  courts 
seem  to  have  found  the  greatest  difficulty  in  agreeing 
is  that  relating  to  the  amount  or  degree  of  knowledge, 
skill,  and  care  that  the  physician  is  obliged  to  possess 
and  exercise  to  escape  from  liability  for  injurious  re- 
sults that  may  follow  his  treatment.    To  place  the  test 


CIVIL  MALPRACTICE.  255 

as  that  degree  exercised  by  the  tJioroughly  educated 
members  of  the  profession  would  be  manifestly  unjust 
to  the  great  majority  of  the  physicians  and  surgeons, 
while  a  test  requiring  only  that  skill  exercised  by  the 
moderately  educated  members  would  be  equally  unjust 
to  the  public.  Upon  this  reasoning  the  supreme  court 
of  Iowa  placed  the  test  as  the  average  of  the  skill  and 
diligence  ordinarily  exercised  by  the  profession  as  a 
whole.*  While  this  rule  is  probably  a  just  one  and  about 
right  in  theory,  it  is  doubted  whether  any  practising 
physician  knows  what  is  the  "  average  of  the  skill  and 
diligence  ordinarily  exercised  by  the  profession  as  a 
whole/'  and,  as  he  is  the  proper  judge  of  whether  a 
given  act  will  stand  this  test,  the  utility  of  the  rule  is 
doubted. 

While  the  degree  of  care  necessary  to  be  bestowed 
in  a  particular  case  is  governed  in  a  great  degree  by  the 
requirements  of  that  case,  a  rule  of  law  demanding  that 
the  degree  of  care  and  skill  required  shall  be  propor- 
tionate to  the  severity  of  the  injury  or  disease  treated 
would  m-anifestly  work  a  great  hardship  upon  the  pro- 
fession. Such  a  rule  was  very  wisely  and  justly  re- 
jected by  the  supreme  court  of  Illinois,  f 

The  location  of  the  particular  practitioner  should 


*  Smothers  vs.  Hanks,  34  la,  286;  Almond  vs.  Nugent,  G4  la.,  300. 
f  Utley  vs.  Burns,  70  III,  102. 


256   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

also  be  taken  into  consideration  in  determining  the 
amount  of  knowledge  and  science  he  shall  possess  and 
the  degree  of  care  and  skill  he  shall  exercise,  because, 
for  reasons  heretofore  referred  to,  the  physician  and 
surgeon  practising  in  our  large  cities  may  be  reasonably 
required  to  possess  higher  qualifications  than  those  in 
small  towns  or  rural  districts.  This  indulgence  should 
not,  however,  be  allowed  to  the  country  practitioners  to 
the  extent  of  permitting  them  in  each  particular  neigh- 
borhood or  community  to  establish  by  their  own  pro- 
fessional standing  the  standard  of  requirement  for  that 
community ;  for,  in  the  words  of  Justice  Worden,  "  there 
might  be  but  few  practising  in  the  given  locality,  all  of 
whom  might  be  quacks,  igTiorant  pretenders  to  knowl- 
edge not  possessed  by  them,  and  it  would  not  do  to  say 
that  because  one  possessed  and  exercised  as  much  skill 
as  the  other  he  could  not  be  chargeable  with  the  want 
of  reasonable  skill."'  After  due  regard  for  all  of  these 
conditions,  a  number  of  our  courts  in  well-considered 
decisions  have  determined  the  proper  test  to  be  that 
there  shall  be  required  of  the  physician  and  surgeon  that 
amount  of  knowledge,  skill,  and  experience,  and  the  ex- 
ercise of  that  degree  of  care  and  skill  which  physicians 
practising  in  similar  localities  ordinarily  possess  and 
exercise.* 

*  Whitesell  vs.  Hill,  101  la.,  629,  37  L.  R.  A.,  830,  70  N.  W.  Rep., 
750. 


CIVIL  MALPRACTICE.  257 

Illustrations. — A  case  illustrating  the  application  of 
the  law  very  nicely  is  that  of  Small  vs.  Howard.*  In 
this  case  the  plaintiff,  the  whole  inside  of  whose  wrist 
had  been  cut  through  to  the  bone  in  such  a  manner  as  to 
sever  all  the  arteries  and  tendons,  called  upon  the  de- 
fendant for  treatment.  The  defendant  was  a  physi- 
cian and  surgeon  residing  in  a  country  town  of  about 
twenty-five  hundred  inhabitants,  and  had  no  expe- 
rience in  surgery  beyond  that  usually  had  by  coun- 
try surgeons.  The  result  of  the  treatment  not  being 
satisfactory,  suit  was  commenced  for  malpractice  in 
dressing  and  caring  for  the  wrist.  Upon  the  trial 
one  expert  called  by  the  plaintiff  testified  that  he 
did  not  think  the  average  country  surgeon  would  be 
likely  to  possess  the  requisite  skill  to  care  for  this 
wound.  The  evidence  of  the  experts  regarding  the 
propriety  of  the  treatment  given  the  injury  was  con- 
flicting, some  testifying  that  it  was  properly  treated, 
others  the  contrary.  The  court,  upon  the  principle  in 
consideration,  instructed  the  jury  that  "  the  defendant, 
undertaking  to  practise  as  a  physician  and  surgeon  in 
a  town  of  comparatively  small  population,  was  bound  to 
possess  that  skill  only  which  physicians  and  surgeons 
of  ordinary  ability  and  skill,  practising  in  similar  local- 
ities, with  opportunities  for  no  larger  experience,  ordi- 

*  Small  vs.  Howard,  128  Mass.,  131. 


258    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

narily  possess;  and  he  was  not  bound  to  possess  that 
high  degree  of  art  and  skill  possessed  by  eminent  sur- 
geons practising  in  large  cities,  and  making  a  specialty 
of  the  practice  of  surgery.  He  is  not  responsible  for 
want  of  success,  unless  it  is  proved  to  result  from  want  of 
ordinary  care  and  attention,  and  then  only  to  the  extent 
of  the  injury  caused  by  his  want  of  skill  and  neglect, 
nor  for  the  whole  consequence  of  the  particular  original 
injury  or  disease.  He  is  not  presumed  to  engage  for 
extraordinary  skill  or  extraordinary  care  and  diligence." 

The  jury,  applying  this  instruction  to  the  evidence 
before  them,  found  a  verdict  for  the  defendant.  The 
plaintiff,  being  dissatisfied,  appealed,  but  the  trial  of 
the  case,  including  the  instruction  of  the  trial  judge, 
from  which  the  above  quotation  was  taken,  was  approved 
by  the  supreme  court. 

The  case  of  Hathorn  vs.  Eichmond*  is  somewhat  pe- 
culiar, and  one  in  which  there  is  considerable  law.  The 
plaintiff,  whose  leg  was  fractured,  sent  for  his  regular 
phj'^sician.  The  regular  physician  declined  to  take  the 
responsibility  of  reducing  the  fracture  and  laid  the  leg 
on  a  double  inclined  splint,  to  make  the  patient  as 
comfortable  as  possible.  On  the  following  day  the  de- 
fendant was  sent  for  and  reduced  the  fracture.  The  reg- 
ular physician  continued  to  attend  the  case  nearly  every 

*  Hathorn  vs.  Richmond,  48  Vt.,  55*7. 


CIVIL  MALPRACTICE.  259 

day  for  about  twenty-two  days,  when  another  physician 
was  called  to  take  his  place.  The  defendant,  who  had  re- 
duced the  fracture,  did  not  call  again  until  five  days 
after  the  operation,  and  then  only  by  reason  of  a  letter 
written  him  by  the  regular  physician  at  the  request  of 
the  patient's  friends,  especially  requesting  him  so  to  do. 
At  the  time  of  making  this  call  the  patient  did  not  seem 
to  be  dissatisfied  with  the  services  rendered  by  the  de- 
fendant and  made  no  claim  of  improper  treatment.  For 
what  purpose  he  was  called,  or  what  he  did,  if  anything, 
while  there,  the  report  of  the  case  does  not  show.  It 
seems  that  the  leg  was  bandaged  too  tightly,  and  as  a 
result  the  injury  followed  for  which  suit  was  brought. 
The  defendant  claimed  that  he  was  only  sent  for  to  take 
charge  of  setting  the  leg  with  the  assistance  of  the  regu- 
lar attending  physician,  and  that  he  did  this  properly, 
and  then  left  plaintifE  in  the  hands  of  the  regular  physi- 
cian as  his  patient,  without  any  expectation  of  again 
visiting  the  case  unless  specially  sent  for.  All  the  sur- 
geons* called  on  the  part  of  the  defendant  testified  that 
the  surgeon  applying  the  dressing  in  any  such  case  could 
not  tell  whether  the  bandage  might  prove  too  tight  or 
too  loose,  but  that  this  matter  must  necessarily  be  left 
with  the  attending  surgeon,  whose  duty  it  was  to  exam- 
ine carefully  in  reference  thereto,  and  adjust  the  dress- 
ing and  bandages  as  might  be  needed.  ISTo  evidence  was 
offered  to  contradict  this. 


260    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

It  was  conceded  and  treated  in  the  trial  that  the 
course  taken  with  the  limb  in  the  interval  between  the 
time  defendant  left  the  patient  after  he  had  finished 
dressing  the  injury  and  his  second  visit,  five  days 
later,  was  lacking  in  proper  and  ordinary  skill  and 
care. 

In  the  matter  of  general  professional  requirements, 
the  trial  judge  instructed  the  jury,  in  effect,  that  the 
defendant  would  be  held  to  possess  such  knowledge  and 
skill  and  exercise  such  care  and  judgment  as  that  ordi- 
narily possessed  and  exercised  by  doctors  in  the  same 
general  neighborhood  and  in  the  same  general  lines  of 
practice;  and  that  they  should  determine  from  the  evi- 
dence whether  the  defendant  did  possess  such  Imowledge 
and  skill ;  and  if  they  decided  this  question  in  the  affirm- 
ative they  should  determine  whether  he  used  ordinary 
care  in  dressing  the  leg.  This  instruction  the  supreme 
court  held  to  be  correct. 

The  trial  judge  continued  with  his  instruction  to  the 
jury,  charging  them  that  if  they  found  the  defendant 
was  wanting  in  the  proper  exercise  of  skill  in  the  tight- 
ness of  the  bandage,  still,  if  his  employment  ceased 
when  he  had  set  and  dressed  the  limb,  and  the  treat- 
ment of  the  case  fell  to  the  attending  physician,  and  it 
was  the  duty  of  the  attending  physician  to  discover  that 
the  bandage  was  too  tight  and  to  loosen  it  and  redress 
the  limb,  and  if  by  such  proper  loosening  and  redress- 


CIVIL  MALPRACTICE.  261 

ing  of  the  limb  the  injury  of  the  tight  bandage  could 
have  been  prevented,  then  the  defendant  would  not  be 
liable  for  the  injury.  The  supreme  court  denied  the 
correctness  of  the  instruction  upon  the  following 
grounds :  It  will  be  observed  that  this  instruction  as- 
sumes that  the  bandage  was  negligently  applied  by  the 
defendant.  From  this  fact  it  will  necessarily  follow  that 
the  improper  application  of  the  bandage  will  begin  to 
exert  an  injurious  influence  upon  the  limb  from  the  mo- 
ment it  is  applied,  and  therefore  it  would  be  manifestly 
unjust  to  assert  that  the  defendant  is  not  liable  for  the 
injury  inflicted  by  this  negligently  and  improperly  ap- 
plied bandage  during  the  ten  or,  perhaps,  twenty-four 
hours  which  must  elapse  before  the  attending  physician 
can  detect  the  improper  bandaging  and  give  relief. 
Moreover,  the  court  declined  to  intimate  whether  it 
would  relieve  the  defendant  from  liability  for  the  in- 
jury resulting  from  his  improper  bandaging  after  the 
time  when  the  attending  physician  should  have  discov- 
ered that  the  bandage  was  too  tight  and  given  relief,  or 
whether  it  would  hold  him  liable  for  all  damages  result- 
ing from  his  own  improper  bandaging  and  the  assist- 
ant's negligence  in  failing  to  readjust  the  bandage.  The 
judgment  rendered  for  the  defendant  in  the  original 
trial  was  accordingly  reversed  and  the  case  sent  back 
for  a  new  trial.  In  view  of  the  open  question  left  by  this 
decision,  it  can  hardly  be  considered  prudent  for  a 


262    THE  LAW  IJ^  ITS  RELATIONS  TO  PHYSICIANS. 

surgeon  to  dress  an  injured  member  and  leave  all 
subsequent  treatment  to  the  regular  attending  phy- 
sician, relying  upon  him  to  correct  any  inadvertency 
which  may  have  attended  the  original  operation  or 
treatment. 

Rules  for  Determining  Skill.  —  In  determining 
whether  or  not  a  physician  is  possessed  of  the  requisite 
amount  of  knowledge,  or  exercises  the  proper  degree  of 
skill,  due  regard  must  be  had:  First,  to  the  school  of 
medicine  which  he  practises;  and,  second,  to  the  ad- 
vanced state  of  the  profession  at  the  time  the  particular 
services  were  rendered. 

Practice  of  the  Particular  School  Governs. — There 
being  different  and  distinct  schools  of  medicine,  recog- 
nizing different  principles  and  different  modes  of  treat- 
ment, it  follows  that  the  treatment  of  a  physician  of 
one  school  must  be  tested  by  the  general  doctrines  of 
his  OAni  school,  and  not  by  those  of  other  schools.* 

While  the  justice  and,  in  fact,  the  necessity  of  this 
law  are  almost  too  evident  to  permit  of  comment,  it  will 
perhaps  be  desirable  to  esamine  one  or  two  cases. 

A  case  in  which  the  rule  was  extended  to  a  degree 
to  which  it  could  not  be  at  this  day,  because  of  the  more 
adequate  laws  protecting  the  public  from  quacks,  is  that 
of  Bowman  vs.  Woods,  f     In  this  case  the  defendant 

*  Patten  vs.  Wipgin.  51  Me.,  594. 

f  Bowman  vs.  Woods,  1  Greene,  la.,  441. 


CIVIL  MALPRACTICE.  263 

claimed  to  be  a  botanic  physician.  The  cause  of  action 
arose  from  alleged  unskillful  treatment  of  a  patient  in 
a  confinement  case.  About  thirty-six  hours  after  the 
delivery  a  Dr.  C.  was  called  in  as  consulting  physician, 
and  upon  the  trial  he  testified  in  effect  that  at  the  time 
he  arrived  the  placenta  was  not  removed;  that  the  pa- 
tient was  greatly  prostrated  by  the  severity  of  the  labor 
and  the  loss  of  blood;  and  that  she  was  also  suffering 
from  a  distention  of  the  bladder,  which  had  not  been 
evacuated  since  parturition.  He  gave  it  as  his  opin- 
ion that  the  placenta  should  have  been  removed  and 
the  distended  state  of  the  bladder  relieved  at  a  much 
earlier  period;  and  that  such  delay  would  be  likely  to 
produce  puerperal  fever.  Several  other  physicians,  as 
witnesses,  concurred  in  Dr.  C.'s  views  of  the  practice. 

The  defendant  then  offered  as  evidence  in  his  own 
behalf  the  testimony  that  he  was  a  botanic  physician, 
and  that,  according  to  the  botanic  system  of  practice  and 
medicine,  it  is  considered  improper  to  remove  the  pla- 
centa, and  that  it  should  be  permitted  to  remain  until 
expelled  by  the  efforts  of  Nature.  The  proof  of  these 
facts  being  objected  to,  they  were  ruled  out  by  the  trial 
judge.  The  supreme  court,  upon  reviewing  the  case,  was 
of  the  opinion  that  the  trial  court  erred  in  not  admitting 
the  proffered  evidence  of  the  defendant.  Justice  Greene, 
after  observing  that  the  several  schools  of  medicine 
were  then  alike  unprohibited  and  enjoyed  equal  legal 


264    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

rights  in  Iowa,*  said:  "A  person  professing  to  follow 
one  system  of  medical  treatment  can  not  be  expected  by 
his  employer  to  practise  any  other.  While  the  regu- 
lar physician  is  expected  to  follow  the  rules  of  the  old 
school  in  the  art  of  curing,  the  botanic  must  be  equally 
expected  to  adhere  to  his  adopted  method.  But  on  the 
part  of  every  medical  practitioner  the  law  implies  an 
undertaking  that  he  will  use  an  ordinary  degree  of  care 
and  skill  in  medical  operations,  and  he  is  unquestionably 
liable  for  gross  carelessness  or  unskillfulness  in  the  man- 
agement of  his  patients;  and  still  the  person  who  am- 
ploys  a  botanic  practitioner  has  no  right  to  expect  the 
same  kind  of  treatment  or  the  same  kind  of  medicine 
that  a  regular  physician  would  administer.  The  law 
does  not  require  a  man  to  do  more  than  he  undertakes, 
nor  in  a  manner  different  from  that  which  he  professes. 
Therefore,  if  in  the  case  the  defendant  below  could  show 
that  he  was  employed  as  a  botanic  physician,  and  that 
he  performed  the  accouchement  with  ordinary  skill  and 
care,  in  accordance  with  the  system  he  professed  to  fol- 
low, we  should  regard  it  as  a  legal  defense.  It  would 
show  a  full  compliance  with  his  profession  and  under- 
taking; and  if  injury  resulted  from  it  to  the  plaintiff,  he 
could  properly  blame  no  one  but  himself. 

"  The  people  are  free  to  select  from  the  various 
*  This  decision  was  rendered  in  1848. 


CIVIL  MALPRACTICE.  265 

classes  of  medical  men,  who  are  accountable  to  their 
employers  for  all  injuries  resulting  from  a  want  of 
ordinary  diligence  and  skill  in  their  respective  systems 
of  treating  diseases.  It  is  to  be  lamented  that  so  many 
of  our  citizens  are  disposed  to  trust  health  and  life  to 
novices  and  empirics,  to  new  nostrums  and  new  meth- 
ods of  treatment.  But  these  are  evils  which  the  courts 
of  justice  possess  no  adequate  power  to  remedy.  En- 
lightened public  opinion  and  judicious  legislation  may 
do  much  to  discountenance  quackery  and  advance  medi- 
cal science." 

Upon  reading  this  case  one  can  not  help  rejoicing 
in  the  approximate  realization  of  the  prophetic  hope 
expressed  by  the  court,  for  at  the  present  day,  excepting 
in  a  few  States,  a  defendant  would  be  unable  to  invoke 
the  protection  of  an  unwilling  court  by  showing  that 
his  vicious  ignorance  of  the  laws  of  medicine  and  of 
health  was  sanctioned  by  the  so-called  school  he  pro- 
fessed to  follow. 

A  recent  application  of  the  rule  is  found  in  the 
case  of  Force  vs.  Gregory.*  There  the  patient  was 
treated  for  ophthalmia  by  the  defendant,  who  is  a 
homoeopathic  physician,  and  who  introduced  evidence  to 
show  that  in  treating  the  plaintiff  he  adopted  the  reme- 
dies prescribed  by  the  homceopathic  practitioners.    The 

*  Force  vs.  Gregory,  63  Conn.,  IS*?. 


266    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

plaintiff  showed  that  the  old-school  practitioners  would 
have  treated  such  a  case  differently,  and  that  she  should 
have  received  the  latter  mode  of  treatment.  The  de- 
fendant's counsel  asked  the  court  to  instruct  the  jury 
that  the  propriety  of  the  treatment  of  the  patient  must 
be  tested  by  the  doctrines  of  the  defendant's  school  of 
medicine.  The  court  refused  to  give  the  instruction 
asked,  but  instead  instructed  the  jury  in  such  a  way 
as  to  leave  it  uncertain  whether  the  defendant's  treat- 
ment was  to  be  judged  by  the  rules  and  practice  of  his 
own  school  alone,  the  instruction  given  being  of  the 
sort  calculated  to  direct  the  attention  of  the  jury  to 
the  relative  merits  of  the  two  systems.  Under  this  in- 
struction the  jur}"-  found  a  verdict  for  the  plaintiff.  The 
supreme  court,  in  reviewing  the  case,  disapproved  of  the 
instruction  and  reversed  the  judgment.  In  criticising 
the  instruction  given  the  jury  Justice  Fenn  said :  "  The 
jury,  we  think,  should  have  been  told  that  the  relative 
merits  of  the  two  schools  were  in  no  sense  before  them 
for  their  consideration;  that  so  far  as  the  defendant 
was  to  be  judged  by  either,  it  was  by  the  tenets,  rules, 
principles,  and  practices  of  his  own  school,  not  by  those 
of  another;  and  if  the  defendant  adopted  the  treatment 
laid  down  by  his  own  school,  the  fact  that  another 
school  prescribed  another  treatment  tended  in  no  wise 
to  show  that  the  defendant  was  chargeable  with  lack  of 
skill  or  negligence.     It  would  seem  that  if  it  could  be 


CIVIL  MALPRACTICE.  267 

held  negligent  or  unskillful  in  a  given  case  to  use  the 
treatment  prescribed  by  the  school  to  which  the  practi- 
tioner belonged,  such  negligence  or  want  of  skill  must 
consist  either  in  the  mode  of  use,  the  application  of 
such  remedies  under  improper  circumstances,  or  because 
they  were  intrinsically  wrong,  inappropriate,  or  inade- 
quate. If  there  be  any  valid  objection  to  the  language 
quoted  from  Patten  vs.  Wiggin — viz.,  '  The  jury  are 
not  to  judge  by  determining  which  school,  in  their  own 
view, is  best' — it  is  in  the  failure  to  incorporate  with  the 
general  statement  the  further  one  that  the  test  there 
given  does  not  exclude  the  duty  of  keeping  pace  with  the 
progress'  of  professional  knowledge,  ideas,  and  discover- 
ies, to  the  extent  that  a  faithful,  conscientious,  and  com- 
petent practitioner,  of  whatever  school,  may  be  reason- 
ably expected,  and  is  therefore  lawfully  required  to  do." 
Perhaps  the  case  of  greatest  interest  recorded  in  the 
law  reports  in  which  this  question  was  raised  is  that  of 
Nelson  vs.  Harrington.*  In  this  case  the  defendant  was 
a  spirituaJist  or  clairvoyant  physician.  The  evidence 
showed  that  the  patient,  a  boy  of  about  fifteen  years  of 
age,  accompanied  by  his  father,  called  upon  the  defend- 
ant about  September  1st.  The  boy  was  suffering  from 
a  disease  of  the  hip  joint,  but  the  defendant  diagnosti- 


*  Nelson  vs.  Harrington,  72  Wis.,  591,  1  L.  R.  A.,  V19,  40  N.  W. 
Kep.,  228. 

18 


268    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

cated  the  disease  as  rheumatism  and  prescribed  treat- 
ment accordingly.  He  continued  to  treat  the  case  until 
about  the  middle  of  the  January  following,  and  during 
that  time  encouraged  the  patient  in  persistent  walking, 
asserting  that  walking  was  beneficial  to  him.  In  Janu- 
ary the  leg  became  so  much  worse  that  he  was  unable  to 
walk  and  suffered  great  pain.  Other  physicians  were 
then  called  in  and  the  patient  was  benefited,  but  will 
remain  a  cripple  for  life. 

The  counsel  for  the  defendant  urged  that  he  pro- 
fessed the  clairvoyant  system  of  medicine,  and  that  if  he 
treated  the  patient  with  due  care  and  skill  in  accordance 
with  the  rules  and  practice  of  that  school  or  system  of 
medicine  he  complied  with  the  requirements  of  the  law 
and  Avas  not  liable  for  unfavorable  results  of  his  treat- 
ment. 

The  supreme  court,  in  determining  the  weight  to  be 
given  to  this  defense,  carefully  reviewed  the  methods  of 
the  alleged  school  of  clairvoyants,  which  may  be  de- 
scribed as  follows :  The  mode  of  diagnosis  consists  in 
going  into  a  sort  of  trance  condition,  and  while  in  such 
state  discovering  the  condition  of  the  patient  and  pre- 
scribing for  the  malady  so  disclosed.  The  spiritualist 
professes  to  have  no  medical  knowledge,  but  trusts  im- 
plicitly to  the  correctness  of  the  diagnosis  made  and 
prescription  given  while  in  such  state. 

To  constitute  a  school  of  medicine  there  must  be 


CIVIL   MALPRACTICE.  269 

rules  and  principles  of  practice  for  the  guidance  of 
all  its  members,  as  respects  diagnosis  and  remedies 
which  each  member  is  supposed  to  observe  in  any 
given  case,  and  each  competent  practitioner  of  a  certain 
school  would  treat  a  given  case  in  substantially  the  same 
way.  The  court  says :  "  And  so  one  school  may  believe 
in  the  potency  of  drugs  and  bloodletting,  and  another 
may  believe  in  the  principle  of  similia  similihus  curan- 
tur;  still  another  may  believe  in  the  potency  of  water, 
or  of  roots  and  herbs ;  yet  each  school  has  its  own  pecul- 
iar principles  and  rules  for  the  government  of  its  prac- 
titioners in  the  treatment  of  diseases."  The  court  then 
observes  that  clairvoyants  recognize  one  mode  of  prac- 
tice only  to  the  extent  of  obtaining  a  knowledge  of  the 
condition  of  their  patients,  but  that  the  treatment  pre- 
scribed by  different  clairvoyants  differs  as  greatly  in 
similar  cases  as  that  prescribed  by  physicians  of  en- 
tirely different  schools,  and  that  by  prescribing  such 
different  remedies  for  the  same  disease  they  can  be  said 
to  violate  no  rule  or  system  of  clairvoyant  treatment. 
The  court  therefore  concludes  that  those  practising 
medicine  as  clairvoyants  form  no  school  of  medicine,  and 
have  no  particular  system  or  rules  by  which  they  can  be 
judged. 

Regard  must  be  had  to  the  Advanced  State  of  Medi- 
cal Science. — The  idea  expressed  by  the  court  in  the  last 
part  of  the  quotation  from  the  opinion  in  the  case  of 


270    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Force  vs.  Gregory  brings  us  to  the  subject  next  in 
order  of  consideration,  which  is,  that  in  judging  of  the 
knowledge  and  skill  displayed  in  a  given  case  due  regard 
must  be  had  to  the  advanced  state  of  medical  science 
at  the  time  the  particular  services  were  rendered.  In 
referring  to  the  improvements  in  medical  and  surgical 
science,  and  the  right  of  the  patient  to  the  benefit  of 
these  improvements.  Justice  Woodward  said  nearly  fifty 
years  ago :  "  Discoveries  in  the  natural  sciences  for  the 
last  half  century  have  exerted  a  sensible  influence  on  all 
the  learned  professions,  but  especially  on  that  of  medi- 
cine, whose  circle  of  truths  has  been  relatively  much 
enlarged ;  and  besides,  there  has  been  a  positive  progress 
in  that  profession  resulting  from  the  studies,  the  ex- 
periments, and  the  diversified  practice  of  its  professors. 
The  patient  is  entitled  to  the  benefits  of  these  increased 
lights.  The  physician  or  surgeon  who  assumes  to  exer- 
cise the  healing  art  is  bound  to  be  up  to  the  improve- 
ments of  the  day."  * 

The  application  of  the  test  is  very  well  illustrated 
in  the  case  of  Gates  vs.  Fleischer,  f  In  this  case  the 
plaintiff  had  recently  given  birth  to  a  child,  from  which 
she  suffered  a  slight  laceration  of  the  cervix.  Not  re- 
gaining her  strength  satisfactorily,  she  called  in  the  de- 


*  McCandless  vs.  McWha,  22  Pa.,  261. 
•(■  Gates  vs.  Fleischer,  67  Wis.,  504. 


CIVIL  MALPRACTICE.  271 

fendant,  about  five  or  sis  weeks  after  the  delivery  of  the 
child,  to  treat  her.  The  defendant  made  a  local  exami- 
nation, and  stated  that  she  was  suffering  from  uterine 
disease,  and  applied  caustics  to  the  cervical  canal  on  the 
theory  that  those  parts  were  ulcerated.  This  treatment 
was  continued  for  several  months. 

The  defendant,  deriving  no  benefit  from  this  treat- 
ment, after  a  lapse  of  about  eight  months  consulted 
a  specialist,  who  found  the  cervical  canal  entirely  closed. 
This  was  opened  by  artificial  means.  The  evidence  also 
showed  that  during  the  entire  time  of  her  illness  the 
plaintiff  was  suffering  from  septicgemia. 

Upon  the  trial  of  the  case  evidence  was  given  to  the 
effect  that  there  was  no  ulcerated  condition  of  either  the 
uterus  or  the  cervical  canal,  and  that  the  treatment  with 
caustics  was  unjustifiable;  that  advanced  medical  sci- 
ence discards  the  use  of  caustics  in  cases  of  ulceration, 
as  a  dangerous  practice ;  and  that  the  treatment  applied 
had  caused  cicatrix  in  the  cervical  canal,  etc.  The  trial 
court,  in  instructing  the  jury  upon  the  law  applicable  to 
the  case,  told  them  that  the  physician  was  bound  to 
bring  to  the  treatment  of  the  case  such  skill  as  is  ordi- 
narily possessed  and  exercised  by  physicians  and  sur- 
geons in  such  localities,  ''  having  regard  to  the  advanced 
state  of  the  profession  at  the  time  of  the  treatment." 
This  instruction  the  supreme  court  held  to  be  entirely 
proper  and  suited  to  the  evidence  adduced  at  the  trial. 


272    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

In  the  case  of  Almond  vs.  Nugent,*  the  opinion  of 
Chief-Justice  Beck  reviews  several  important  features 
of  the  ground  just  passed  over  in  such  a  masterly  way 
that  the  following  extended  quotation  is  taken  there- 
from. The  chief  justice  said :  "  The  first  one  [of  the  in- 
structions] is  clearly  objectionable  in  holding  the  civil 
responsibility  of  the  surgeon  to  be  governed  by  the  same 
rules  of  law  as  those  that  apply  to  mechanics  and  to 
others  engaged  in  some  of  the  other  pursuits  mentioned. 
As  a  general  rule,  mechanics  are  answerable  for  results, 
and  the  real  test  of  their  skill  is  the  success  of  their 
work.  Not  so  with  the  physician  and  surgeon.  They 
are  required  to  exercise  due  skill,  but  are  not  responsible 
if  the  desired  result  fails.  The  skillful  mechanic  will 
always  be  successful.  The  materials  which  he  under- 
takes to  shape  and  fashion  are  subject  to  known  laws, 
and  are  completely  under  his  control.  The  surgeon 
and  physician  apply  their  skill  to  human  bodies  which 
are  subject  to  laws,  both  physical  and  mental,  almost 
infinite  in  number — many  uncertain  and  many  un- 
known. The  diseases  which  they  combat  are  not  under 
the  full  dominion  of  human  skill  and  wisdom.  They  are 
not  expected  to  resist  and  avert  the  approach  of  death, 
which  ultimately  destroys  all. 

''  ^!'he  third  instruction  above  quoted  is  equally  ob- 

*  Almond  vs.  Nugent,  34  la.,  300. 


CIVIL  MALPRACTICE.  273 

jectionable.  The  thought  that  the  physician  and  sur- 
geon are  required  to  keep  up  with  the  progress  of  the 
day  in  their  respective  professions  accords  with  my 
•views  (expressed  in  a  previous  case).  .  .  .  But  the  rule 
announced,  that  the  practitioner  must  apply  himself  to 
the  •'  most  accredited  source  of  knowledge/  imposes  a 
requirement  that  can  not  be  admitted.  It  demands  that 
the  surgeon  shall  be  educated  by  instructors  of  the  most 
established  reputation,  that  he  shall  resort  to  schools  of 
the  widest  fame,  and  study  books  of  the  first  authority. 
The  rule  condemns  all  knowledge  not  acquired  in  this 
way,  and  fixes,  as  a  standard  of  ordinary  skill,  attain- 
ments gained  from  the  prescribed  course  of  prepara- 
tion for  the  discharge  of  professional  duties.  .  .  . 
Humble  and  unknown  instructors  of  obscure  schools 
may  be  sources  from  which  the  professional  man  may 
gain  thorough  knowledge  of  the  principles  of  his  pro- 
fession. .  .  .  The  law  requires  skill  and  makes  no  in- 
quiry as  to  the  source  whence  it  is  obtained. 

"  The  last  sentence  of  the  instruction  under  consid- 
eration is,  if  possible,  more  faulty.  It  holds  the  surgeon 
liable  in  damages  if  he  fails  to  exercise  his  art  or  pro- 
fession rightly  and  truly  as  he  ought.  Here  absolute 
accuracy  and  certainty  are  demanded.  No  allowance  is 
made  for  failure  to  administer  the  proper  remedy  in 
cases  where  the  highest  skill  will  leave  the  professional 
man  in  doubt  at  the  time  he  is  required  to  act.    As  we 


274    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS, 

have  before  remarked,  many  laws  of  Nature,  applicable 
to  the  administration  of  remedies  for  the  diseases  of  the 
human  bod}',  are  not  fully  understood;  many  are  un- 
known. In  obedience  to  an  occult  law  an  approved  rem- 
edy may  fail.  Symptomatic  indications  often  refuse  to 
inform  the  physician  or  surgeon  of  the  real  disease 
which  his  skill  is  called  upon  to  combat,  and  an  autopsy 
reveals,  too  late,  conditions  of  the  organs  of  the  patient, 
that  could  have  been  discovered  in  no  other  way,  which 
demanded  a  different  course  of  treatment.  As  it  is  im- 
possible for  the  surgeon  or  physician,  possessing  even 
the  highest  degree  of  skill,  always  to  act  rightly  and 
truly  as  he  ought,  the  practitioner  should  not  be  held 
liable  if,  in  the  faithful  and  honest  exercise  of  ordinary 
skill,  which  is  only  demanded,  he  fails  to  use  the  right 
remedy." 

Best  Judgment  Eequired. — It  will  be  remembered 
that  the  general  standard  of  professional  requirements 
is  that  the  physician  must  possess  a  reasonable  degree 
of  knowledge,  skill,  and  experience;  second,  that  he 
must  exercise  ordinary  care  and  diligence;  and  third, 
that  he  will  use  his  best  judgment  in  all  cases  of  doubt. 
Having  scrutinized  the  first  two  requirements  of  this 
standard,  attention  will  now  be  particularly  given  to  the 
third. 

It  may  be  considered  an  axiom,  de  facto  as  well  as 
legal,  that  one  can  not  use  good  judgment  in  the  treat- 


CIVIL  MALPRACTICE.  275 

ment  of  a  case  without  first  possessing  the  adequate 
amount  of  knowledge  and  skill  and  exercising  the 
proper  degree  of  care.  Dr.  McClelland,*  in  his  collection 
of  malpractice  cases,  cites  the  case  of  Courtney  vs.  Hen- 
derson, decided  in  the  marine  court  of  New  York,  in 
which  a  man,  fifty-seven  years  of  age,  who  had  been 
under  the  care  of  an  eye  infirmary  for  eight  weeks, 
was  induced  to  withdraw  from  that  institution  and  put 
himself  under  the  defendant's  treatment.  While  in  the 
infirmary  there  was  a  gradual  improvement  of  his  eyes, 
but  soon  after  placing  himself  under  the  care  of  the  de- 
fendant the  improvement  ceased,  the  disease  became 
more  aggravated,  and  the  eyesight  gradually  failed. 
The  defendant  treated  the  eyes  about  three  months, 
and  during  this  time  performed  an  operation  upon  them 
and  put  some  kind  of  powder  into  them.  At  the  end  of 
the  three  months'  treatment  the  plaintiff  returned  to 
the  eye  infirmary,  but  his  vision  was  gone,  never  to  re- 
turn. The  only  expert  evidence  offered  was  that  of  two 
physicians  from  the  infirmary,  who  testified  that  they 
had  no  doubt  the  plaintiff  would  have  recovered  under 
proper  treatment.  They  also  testified  to  their  mode  of 
treatment  in  such  cases,  which  differed  materially  from 
that  of  the  defendant.  It  seems  that  no  expert  evidence 
was  offered  showing  that  the  defendant's  treatment  was 

*  McClelland  on  Civil  Malpractice,  p.  273. 


276    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

either  skillful  or  proper,  nor  any  evidence  to  show  that 
he  was  a  qualified  physician  and  surgeon.  The  defend- 
ant's counsel  urged  that  the  failure  of  the  defendant 
to  properly  treat  the  plaintifE  was  the  result  of  an  error 
in  judgment,  and  for  that  he  was  not  liable.  The  court 
held  that  this  was  a  good  defense  when  applied  to  one 
skilled  in  the  science  of  medicine,  but  that  the  defend- 
ant, knowing  nothing  of  anatomy,  surgery,  or  physics, 
was  incapable  of  having  judgment  in  the  matter.  The 
court  accordingly  affirmed  the  judgment  rendered  in 
favor  of  the  plaintiff  and  against  the  defendant  for 
malpractice. 

The  law,  it  has  been  observed,  requires  only  that  the 
knowledge  possessed  and  the  care  and  skill  exercised 
shall  be  "  ordinary"  or  "  usual,"  but  the  judgment  must 
be  the  physician's  best  judgment.  What  is  one's  best 
judgment  is,  from  the  nature  of  the  case,  absolutely  im- 
possible to  determine, the  judgment  of  no  two  men  being, 
the  same  in  all  respects.  Because  of  the  uncertainty  of  a 
rule  of  liability  based  upon  the  judgment  of  the  party 
whose  actions  were  the  subject  of  litigation,  an  English 
court  refused  to  entertain  the  plea  that  an  error  of  judg- 
ment was  a  defense.  Justice  Tindal,  in  that  case,  said : 
"  Instead,  therefore,  of  saying  that  the  liability  for  neg- 
ligence should  be  coextensive  with  the  judgment  of  each 
individual,  which  would  be  as  varied  as  the  length  of  the 
foot  of  each  individual,  we  ought  rather  to  adhere  to  the 


CIVIL  MALPRACTICE.  277 

rule  which  requires  in  all  eases  a  regard  to  caution  such 
as  a  man  of  ordinary  prudence  would  observe."  *  The 
justice  did  not,  at  the  time  of  uttering  these  words, 
have  in  mind  the  judgment  of  a  professional  man  exer- 
cised in  performing  the  functions  of  his  profession,  yet 
the  principle  will  apply,  for  the  exercise  of  judgment 
must  be  such  as  not  only  to  preclude  the  idea  of  profes- 
sional incompetency  and  of  a  want  of  reasonable  care, 
but  the  judgment  itself  must  be  consistent  with  the  use 
of  that  degree  of  skill  that  it  is  the  duty  of  every  surgeon 
to  bring  to  the  treatment  of  a  case,  according  to  the 
standard  of  skill  and  care  indicated,  f  For  this  reason 
nothing  short  of  one's  best  judgment  is  adequate. 

A  physician  who  possesses  the  requisite  amount  of 
knowledge  and  skill,  and  exercises  his  best  judgment  in 
determining  upon  such  treatment  as  experience  has 
shown  him  to  be  best,  is  not  liable  in  damages  from 
an  injury  resulting  from  an  error  of  judgment.  J 
Such  judgment,  in  order  to  be  a  complete  protection 
to  the  physician,  must,  however,  have  been  exercised 
in  a  case  where  competent  physicians  might  honestly 
doubt  as  to  the  nature  of  the  disease  or  the  proper 
method  of  treating  it.  In  such  a  case  all  that  the  law 
requires  is  that  a  physician  shall  summon  to  his  assist- 

*  Vaughan  vs.  Menlovc,  3  Bing.,  N.  C,  468. 

f  West  vs.  Martin,  31  Mo.,  375. 

X  Vanhooser  vs.  Berghoff,  90  Mo.,  488. 


278    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ance  all  of  his  loiowledge  and  skill,  and  in  the  light  of 
their  aid  exercise  his  best  judgment.  If,  however,  the 
case  is  such  a  one  that  no  physician  possessing  ordinary 
knowledge  and  skill  would  doubt  or  hesitate,  and  but 
one  course  of  treatment  would  be  suggested  by  a  com- 
petent professional  man,  then  any  other  course  of  treat- 
ment might  be  evidence  of  a  want  of  ordinary  knowledge 
or  skill,  or  proper  care  or  attention.*  In  determining 
whether  or  not  a  physician  may  safely  exercise  his  judg- 
ment in  a  given  case  he  should  first  consider  his  general 
qualifications  as  a  practitioner  of  medicine  and  his  com- 
petency to  handle  the  particular  case ;  for  if  he  is  com- 
petent to  treat  the  case,  but  is  in  doubt  as  to  the  nature 
and  extent  of  the  injury  or  the  proper  mode  of  treat- 
ment, he  is  justified,  and  it  is  his  duty,  to  use  his  best 
judgment  in  deciding  upon  the  nature  of  the  disease  or 
injury  and  fixing  upon  a  course  of  treatment,  and  also 
as  to  whether  or  not  he  will  consult  with  some  other  phy- 
sician and  surgeon.  But  if,  on  the  other  hand,  he  is  not 
competent  to  treat  the  case,  or  feels  that  he  is  not  com- 
petent, he  should  recommend  the  patient  to  some  other 
physician,  f 

Theoretically,  it  is  not  difficult  to  lay  down  a  rule 
which  commends  itself  both  to  our  reason  and  our  sense 
of  justice,  defining  those  errors  of  judgment  from  which 

*  Patten  vs.  Wiggin,  51  Me.,  594. 
f  Mallen  vs.  BojTiton,  132  Mass.,  443. 


CIVIL  MALPRACTICE.  279 

no  cause  of  action  should  arise.  Such  a  rule  is  the  one 
laid  down  by  Justice  Richmond,  which  is  that  "  Physi- 
cians are  not  responsible  for  the  errors  of  an  enlight- 
ened judgment,  where  good  judgments  may  differ;  and 
I  can  come  to  no  other  conclusion  than  that,  when  there 
are  reasonable  grounds  for  doubt  and  difference  of  opin- 
ion, the  professional  man,  after  the  exercise  of  his  best 
judgment,  admitting  that  he  possesses  the  necessary 
knowledge,  is  not  responsible  for  errors  of  judgment  or 
mistakes,  and  is  only  chargeable  with  errors  wliich  could 
not  have  arisen  except  for  the  want  of  or  the  exercise  of 
reasonable  skill  and  diligence."  *  But  it  is  in  the  prac- 
tical application  of  such  a  rule  that  the  difficulty  lies. 
What  things  must  the  physician  know  as  a  matter  of 
knowledge  and  what  may  he  assume  through  the  exer- 
cise of  his  best  judgment?  In  the  case  of  Du  Bois  vs. 
Decker  f  the  plaintiff  had  a  portion  of  his  foot  crushed 
beneath  the  wheels  of  a  locomotive.  The  physician,  hop- 
ing to  save  the  foot,  deferred  amputation  for  nine  days ; 
then,  seeing  that  the  foot  could  not  be  saved,  amputated 
the  leg  just  above  the  ankle.  Shortly  afterward  gan- 
grene appeared,  rendering  further  operation  necessary. 
At  the  trial  evidence  was  given  tending  to  show  that  the 
bones  of  the  foot  were  so  crushed  that  immediate  ampu- 
tation of  the  injured  portion  was  necessary,  and  that 

*  Burnham  vs.  Jackson.  1  Colo.  App.,  237. 
f  Du  Bois  vs.  Decker,  130  N.  Y.,  325. 


280    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  appearance  of  gangrene  was  in  consequence  of  the 
delay  in  operating.  The  counsel  for  the  defendant 
claimed  that  the  defendant,  in  the  exercise  of  his  best 
judgment,  believed  the  foot  might  be  saved,  and  that 
he  could  not  be  held  liable  for  an  error  of  judgment. 
But  the  court  failed  to  agree  with  the  defendant's  coun- 
sel ;  it  said :  "  But  his  judgment  must  be  founded  upon 
his  intelligence.  He  engages  to  bring  to  the  treatment 
of  the  patient  care,  skill,  and  knowledge,  and  he  should 
have  known  the  probable  consequences  that  would  follow 
from  the  crushing  of  the  bones  and  tissues  of  the  foot." 
On  the  other  hand,  if  the  injury  sustained  in  such  a 
case  were  not  so  serious  as  to  preclude  the  probability 
of  the  recovery  of  the  injured  member,  and  the  defend- 
ant were  to  produce  competent  and  skilled  physicians 
at  the  trial  to  testify  that  a  recovery  might  be  reasonably 
expected,  and  that  the  course  of  treatment  adopted  by 
the  defendant  was  proper  or  best  calculated  to  effect  a 
recovery,  then  no  reason  can  be  seen  why  the  defendant 
should  not  have  been  released  from  all  liability. 

A  physician  in  the  exercise  of  his  judgment  is  not 
bound  to  anticipate  or  foresee  any  unusual  or  improb- 
able result  of  his  treatment.  In  the  case  of  Bogle  vs. 
Winslow,*  the  plaintiff,  who  had  a  few  days  previously 
received  a  severe  blow  on  the  head,  called  upon  the  de- 

*  Bogle  vs.  Winslow,  5  Phil.  (Pa.),  136. 


CIVIL  MALPRACTICE.  281 

fendant,  a  dentist^,  for  the  purpose  of  having  some  teeth 
extracted.  The  defendant  administered  chloroform  and 
took  out  the  teeth.  A  few  hours  afterward  the  plaintiff 
complained  of  numbness  of  one  side,  which  in  a  few  days 
was  followed  by  a  stroke  of  paralysis.  The  plaintiff 
brought  suit  against  the  dentist,  claiming  that  the 
paralysis  was  the  direct  result  of  the  chloroform.  Con- 
siderable exi)ert  evidence  was  given,  most  of  it  to  the 
effect  that  paralj^sis  could  not  result  from  the  use  of 
chloroform.  Some  testified  that  it  might  result  from 
the  use  of  such  an  anaesthetic.  There  was  also  evidence 
that  the  severe  blow  on  the  head  received  by  the  plain- 
tiff might  have  produced  a  latent  disease  only  requiring 
some  exciting  cause  to  rouse  it  into  activity. 

The  judge  was  of  the  opinion  that  if  the  administer- 
ing of  the  chloroform  or  the  extraction  of  the  teeth  was 
the  cause  of  plaintiff's  paralysis,  still  it  would  not  be 
just  to  make  the  defendant  answer  in  damages  for  con- 
sequences which  he  could  not  foresee,  and  which  were 
not  the  ordinary  or  probable  result  of  what  he  did.  The 
jur}^  was  so  instructed  and  found  a  verdict  for  the  de- 
fendant. 

The  rule  that  a  physician  is  bound  to  exercise  his 
best  judgment  being  one  of  universal  application,  it 
necessarily  follows  that  when  he  is  called  upon  by  a 
patient  to  perform  an  operation  which  in  his  judgment 
is  unwise  or  unnecessary,  he  is  bound  to  advise  against 


282    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

such  operation  whether  his  opinion  is  asked  or  not.  In 
the  case  of  Gramm  vs.  Boener  *  the  defendant  had  set 
the  plaintiff's  arm.  Several  weeks  after,  the  bones  ap- 
peared slightly  out  of  place,  either  from  having  become 
displaced  or  from  not  having  been  originally  accurately 
adjusted.  The  plaintiff  asked  the  defendant  to  rebreak 
and  readjust  the  bones,  but  the  defendant  advised 
against  the  operation.  He  told  the  plaintiff  that  to  re- 
break  the  bones  would  be  of  no  use;  that  it  had  better 
be  left  alone,  and  that  he  ought  not  to  think  of  it.  But 
upon  the  plaintiff's  insistence,  he  finally  performed  the 
operation.  The  result  was  so  unsatisfactory  that  suit 
was  brought.  In  the  supreme  court,  upon  the  appeal  of 
the  case,  the  question  arose  whether  the  defendant  was 
justified  in  finally  deferring  to  the  judgment  of  the  pa- 
tient and  breaking  the  arm,  or  whether  he  should  have 
refused  to  operate  altogether  when  such  an  operation 
was  contrary  to  his  own  best  judgment.  The  supreme 
court  was  of  the  opinion  that  the  defendant  had  in- 
curred no  liability  under  the  circumstances  in  operating. 
Upon  this  question  Justice  Worden  said :  "  But  if  a  sur- 
geon, when  thus  called,  advises  a  patient  who  is  of  ma- 
ture years  and  of  sound  mind  that  the  operation  is  un- 
necessary and  improper — in  short,  advises  against  the 
performance — and  the  patient  still  insists  upon  the  per- 

*  Gramm  vs.  Boener,  56  Ind.,  49*7. 


CIVIL  MALPRACTICE.  283 

formance  of  the  operation,  in  compliance  with  which 
the  surgeon  performs  it,  we  do  not  see  upon  what  prin- 
ciple the  surgeon  can  be  held  responsible  to  the  patient 
for  damages,  on  the  ground  that  the  operation  was  im- 
proper and  injurious.  In  such  cases  the  patient  relies 
upon  his  own  judgment,  and  not  upon  that  of  the  sur- 
geon, as  to  the  propriety  of  the  operation ;  and  he  can 
not  complain  of  an  operation  performed  at  his  own 
instance  and  upon  his  own  judgment,  and  not  upon  that 
of  the  surgeon." 

If  in  the  physician's  best  judgment  it  is  advisable  to 
withhold  from  a  patient  in  a  particular  emergency  a 
knowledge  of  the  danger  and  extent  of  his  disease,  he 
will  be  justified  in  so  doing.  So,  when  a  physician,  in 
attending  a  patient  who  was  sufEering  from  a  felon,  told 
her  that  her  hand  was  doing  well,  and  that  she  ought  to 
be  thankful  that  it  was  so  well,  he  was  held  to  have  in- 
curred no  liability  thereby,  it  not  appearing  that  the 
patient  desired  to  secure  counsel,  or  was  deterred  by  the 
physician's  statement  from  so  doing.* 

'Not  is  there  any  legal  necessity  that  the  physician 
should  acquaint  the  patient  with  the  character  of  the 
operation  or  treatment  he  proposes  to  employ,  f  The 
advisability  of  such  a  step  is  purely  a  matter  of  judg- 


19 


*  Twombly  vs.  Leach,  65  Mass.,  397. 
f  Boydston  vs.  Giltner,  3  Ore.,  118. 


284    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ment,  and  in  such  matters  the  exercise  of  the  physician's 
best  judgment  is  all  that  the  law  requires. 

Refusal  by  Physician  of  Proffered  Assistance  does 
not  Increase  his  Obligations. — Having  once  assumed 
charge  of  a  case,  the  degree  of  knowledge,  skill,  and  care 
which  the  law  requires  a  physician  to  possess  and  exer- 
cise is  not  altered  by  the  fact  that  he  refuses  the 
proffered  assistance  of  other  m.edical  men.  His  refusal 
in  such  a  case  is  simply  an  implied  declaration  of  his 
ability  to  treat  the  case  properly,  and  its  effect  is  nei- 
ther to  increase  nor  decrease  the  degree  of  knowledge, 
skill,  and  care  which  the  law  makes  it  his  duty  to  have 
and  exercise.* 

Admission  of  Inadequate  Skill. — If,  on  the  other 
hand,  the  physician  frankly  informs  the  patient  that 
he  has  not  sufficient  skill  or  experience  to  treat  the 
particular  case  or  injury,  the  degree  of  skill  that  can 
reasonably  be  required  of  him  is  thereby  materially  de- 
creased.! Such  an  admission  will  not,  however,  relieve 
the  physician  from  liability  when  he  continues  his  serv- 
ices with  the  assistance  of  another  physician  or  sur- 
geon. In  a  case  of  this  sort  the  liability  is  a  question 
of  fact  to  be  determined  by  the  jury,  who,  in  arriving  at 
their  conclusion,  must  determine  whether  there  was 
such  a  degree  of  ignorance  or  unskillfulness  displayed 

*  Potter  vs.  Warner,  91  Pa.  St.,  362. 

f  Shearman  and  Redfield  on  Negligence,  §  607. 


CIVIL  MALPRACTICE.  285 

as  to  justify  holding  the  defendant  liable  to  the  plain- 
tiff in  damages,  notwithstanding  his  admission.  In  the 
case  of  Lorenz  vs.  Jackson,*  the  plaintiff  had  been 
injured  by  being  struck  by  a  piece  of  steel  from  a  broken 
hammer,  which  passed  through  two  pairs  of  trousers  and 
buried  itself  in  his  left  leg  above  the  knee.  After  re- 
ceiving the  injury  he  rode  about  a  mile  on  a  handcar, 
and  then  walked  about  five  hundred  feet  to  his  home. 
Soon  afterward  the  defendant  arrived  and  examined  the 
wound,  but  was  unable  to  find  the  piece  of  steel ;  he  an- 
nounced that  the  wound  was  of  a  serious  character  and 
that  he  did  not  regard  himself  as  sufficiently  experi- 
enced in  surgery  to  properly  treat  the  case,  and  advised 
that  a  more  skilled  and  experienced  surgeon  be  called 
in.  Another  doctor  was  accordingly  secured.  To- 
gether the  doctors  administered  ether,  and  the  physi- 
cian last  summoned  probed  for  the  piece  of  steel,  wid- 
ening the  wound  in  the  limb,  and  thereafter  applied 
bandages.  The  doctor  first  summoned  remained  with 
the  patient  all  night,  administering  to  him  hypodermic 
injections  of  morphine  and  atropine.  The  treatment 
continued  for  about  eight  days,  when  it  was  discovered 
that  dry  gangrene  had  ensued.  A  third  physician  was 
then  called  to  take  charge  of  the  case,  who  soon  deter- 
mined upon  and  performed  an  amputation.    Much  evi- 

*  Lorenz  vs.  Jackson,  88  Hun,  200. 


286    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

dence  was  given  upon  the  trial  respecting  the  treat- 
ment of  the  patient  by  the  first  two  physicians  called, 
but  what  that  evidence  was  the  report  of  the  case  does 
not  show.  The  judge,  upon  submitting  the  case  to  the 
jury,  charged  them  in  effect  that  "  if  the  practitioner 
frankly  informed  the  patient  of  his  want  of  skill,  or  if 
the  patient  is  in  some  other  way  fully  aware  of  it,  he 
can  not  complain  of  the  lack  of  that  which  he  knew  did 
not  exist."  Notwithstanding,  the  jury  returned  a  ver- 
dict in  favor  of  the  plaintiff,  assessing  his  damages  at 
three  thousand  dollars.  This  verdict  the  supreme  court 
refused  to  disturb. 

Liability  for  Negligence  of  Student. — It  has  been 
observed  that  a  physician  and  surgeon  is  entitled  to 
compensation  for  the  services  of  his  apprentice  or  stu- 
dent practising  under  his  direction.  As  a  logical  result, 
he  should  be  held  responsible  for  the  negligence  or  want 
of  skill  in  such  assistant.  This  has  been  held  to  be  the 
law  in  England,*  and  this  case  will  probably  be  consid- 
ered an  authoritative  precedent  in  America. 

Must  follow  Established  Practice. — One  of  the  rules 
which  the  law  strictly  enforces  for  the  protection  of  the 
public  is  that  when  there  is  an  established  practice  or 
mode  of  treatment  for  a  particular  disease  or  injury 
the  physician  must  conform  to  professional  custom  and 

*  Hancke  vs.  Hooper,  1  C.  and  P.,  81. 


CIVIL  MALPRACTICE.  287 

adopt  the  established  treatment,  but  will  not  be  per- 
mitted to  experiment  without  incurring  liability  for 
resulting  injuries.* 

The  reason  for  the  rule,  also  an  indication  of  the 
extent  to  which  it  will  be  enforced,  is  well  expressed  in 
the  case  of  Carpenter  vs.  Blake, f  where  the  court  said: 
"  Some  standard,  by  which  to  determine  the  propri- 
ety of  treatment,  must  be  adopted;  otherwise  experi- 
ment will  take  the  place  of  skill,  and  the  reckless  ex- 
perimentalist the  place  of  the  educated,  experienced 
practitioner.  If  the  case  is  a  new  one,  the  patient 
must  trust  to  the  skill  and  experience  of  the  surgeon 
he  calls;  so  must  he  if  the  injury  or  the  disease  is  at- 
tended with  injury  to  other  parts,  or  other  diseases  have 
developed  themselves,  for  which  there  is  no  established 
mode  of  treatment.  But  when  the  case  is  one  as  to 
which  a  system  of  treatment  has  been  followed  for  a 
long  time,  there  should  be  no  departure  from  it,  unless 
the  surgeon  who  does  it  is  prepared  to  take  the  risk  of 
establishing  by  his  success  the  propriety  and  safety  of 
his  experiment. 

"  The  rule  protects  the  community  against  reckless 
experiments,  while  it  admits  the  adoption  of  new  reme- 
dies and  modes  of  treatment  only  when  their  benefits 
have  been  demonstrated,  or  when,  from  the  necessity  of 

*  Hesse  vs.  Knippel,  1  Brown  (Mich.  N.  P.),  109. 
f  Carpenter  vs.  Blake,  60  Barb.,  488. 


288    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  case,  the  surgeon  or  physician  must  be  left  to  the 
exercise  of  his  own  skill  and  experience." 

The  question  of  when  a  method  of  treatment  is  con- 
sidered sufficiently  settled  or  established  as  to  be  the 
only  safe  one  for  a  physician  to  adopt  has  given  the 
courts  some  trouble.  This  question  is,  however,  one 
rather  of  fact,  to  be  determined  from  the  evidence 
with  the  aid  of  testimony  of  expert  witnesses,  than 
of  law.  In  the  case  of  Slater  vs.  Baker  and  Staple- 
ton,*  decided  in  England  in  1767,  the  evidence  showed 
that  a  surgeon  and  an  apothecary  were  employed  to 
treat  a  leg  which  had  been  broken  and  set.  In  treat- 
ing this  leg  they  rebroke  it  and  applied  a  new  in- 
strument. The  evidence  of  experts  was  to  the  efEect 
that  when  the  callus  had  formed  to  any  degree  it  was 
bad  practice  to  rebreak  the  leg;  and  that  in  the  present 
ease  the  callus  must  have  formed  to  such  a  degree  as  to 
render  the  operation  improper  and  contrary  to  recog- 
nized practice.  The  surgeon  who  performed  the  oper- 
ation was  a  man  of  recognized  ability  and  high  pro- 
fessional standing.  The  court  refused  to  set  aside  a 
judgment  for  the  plaintiff  and  closed  its  opinion  by 
saying :  "  For  anything  that  appears  to  the  court,  this 
was  the  first  experiment  made  with  this  new  instru- 
ment, and  if  it  was  it  was  a  rash  action,  and  he  who 

*  Slater  vs.  Baker  and  Stapleton,  2  Wilson's  R.,  359. 


CIVIL  MALPRACTICE.  289 

acts  rashly  acts  ignorantly ;  and  although  the  defend- 
ants in  general  may  be  as  skillful  in  their  respective 
professions  as  any  two  gentlemen  in  England,  yet  the 
court  can  not  help  saying  that  in  this  particular  case 
they  have  acted  ignorantly  and  unskillfully,  contrary  to 
the  known  rule  and  usage  of  surgeons." 

In  the  case  of  Winner  vs.  Lathrop  *  the  patient 
was  suffering  from  a  fracture  of  the  radius..  The  de- 
fendant reduced  the  fracture  several  hours  after  the 
injury,  and,  so  far  as  the  evidence  shows,  seems  to  have 
performed  the  operation  skillfully  and  in  accord  with 
the  most  approved  methods  known  to  the  profession. 
There  was,  however,  evidence  given  by  the  defendant 
to  the  effect  that  the  defendant  directed  that  the  in- 
jured part  be  bathed  in  a  decoction  of  wormwood  and 
vinegar,  which  the  expert  testimony  condemned. 

The  injured  arm  was  not  perfectly  restored  to  its 
former  usefulness;  the  wrist  remained  to  some  extent 
stiff,  the  rotary  motion  of  the  arm  was  obstructed,  and 
the  usefulness  of  the  hand  was  permanently  impaired. 
For  this  reason  suit  was  brought,  and  judgment  ob- 
tained in  the  trial  court  against  the  defendant  for  fifty 
dollars.  The  supreme  court,  upon  appeal,  was  of  the 
opinion  that  no  unskillfulness  in  the  treatment  of  the 
arm  had  been  shown,  and  that  application  of  wormwood 

*  Winner  vs.  Lathrop,  67  Hun,  511. 


290    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

and  vinegar  to  the  injury,  even  if  proved,  was  not  such 
a  departure  from  approved  medical  treatment  as  to  jus- 
tify a  recovery  against  the  defendant. 

A  case  rich  in  instruction  upon  the  point  in  con- 
sideration is  that  of  Jackson  vs.  Burnham.*  The  plain- 
tiff was  suffering  from  phimosis,  and  the  defendant, 
instead  of  slitting  up  the  prepuce,  applied  a  flaxseed- 
meal  poultice,  which  aggravated  the  malady  and  accel- 
erated gangrene,  and  resulted  in  the  destruction  and 
loss  of  the  organ.  Upon  the  trial  of  the  case  the 
trial  judge  instructed  the  jury,  among  other  things, 
that :  "  If  you  find  from  the  evidence  that  this  defend- 
ant, in  the  treatment  of  the  plaintiff,  omitted  the  ordi- 
nary or  established  mode  of  treatment,  and  pursued  one 
that  has  proved  injurious,  it  is  of  no  consequence  how 
much  skill  he  may  have;  he  has  demonstrated  a  want 
of  it  in  the  treatment  of  the  particular  case,  and  is 
liable  in  damages."  The  supreme  court,  upon  review  of 
the  case,  criticised  this  instruction,  saying,  in  effect, 
that  as  an  abstract  proposition  of  law  it  was  not 
absolutely  correct,  because  it  did  not  give  an  oppor- 
tunity for  the  exercise  of  enlightened  judgment  in 
cases  involving  doubt,  or  where  there  was  reasonable 
ground  for  difference  of  opinion  as  to  the  nature  of  the 
disease  and  the  proper  mode  of  treatment.     But  as 

*  Jackson  vs.  Bumham,  20  Colo.,  532. 


CIVIL  MALPRACTICE.  291 

applied  to  the  present  case,  where  the  evidence  showed 
by  a  strong  preponderance  that  the  disease  from  which 
the  plaintiff  was  suffering  was  phimosis,  and  that  the 
proper  method  of  treating  this  condition  is  to  slit  the 
prepuce  to  the  corona,  relieving  the  tension  or  strangu- 
lated condition  and  permitting  the  restoration  of  circu- 
lation, the  instruction  could  not  have  misled  the  jury 
to  the  prejudice  of  the  defendant. 

In  cases  of  this  sort  the  court  held  that  the  test  by 
which  to  determine  whether  a  physician  is  bound  to  fol- 
low a  particular  mode  of  treatment  for  a  given  condi- 
tion is  whether  or  not  that  mode  of  treatment  is  upheld 
by  a  consensus  of  opinion  of  the  members  of  his  pro- 
fession. The  court  said  when  the  method  of  treatment 
is  so  upheld,  "it  should  be  followed  by  the  ordinary 
practitioner;  and  if  a  physician  sees  fit  to  experiment 
with  some  other  mode,  he  should  do  so  at  his  peril." 

For  the  purpose  of  more  fully  illustrating  the  appli- 
cation of  the  rules  and  principles  of  law  laid  down  in 
the  foregoing  pages  of  this  chapter  the  character  of 
the  defense  of  the  defendant  in  this  case  will  be  exam- 
ined. The  defendant  admitted  that  the  proper  rem- 
edy for  phimosis  was  that  testified  to  by  the  expert  wit- 
nesses and  above  given ;  but  he  denied  that  the  plaintiff 
was  suffering  from  phimosis.  He  maintained  that  the 
swollen  condition  of  the  organ  was  the  result  of  an  ul- 
ceration of  the  urinary  canal  and  that  the  treatment 


292    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

prescribed  for  him  was  proper  for  such  a  condition.  The 
defendant's  counsel  urged  that,  admitting  the  defend- 
ant had  erred  in  diagnosticating  the  case  and  that  the 
true  condition  was  phimosis,  then  the  error  was  one  of 
judgment  for  which  the  defendant  could  not  be  held  re- 
sponsible. 

Upon  the  trial  of  the  case,  after  all  of  the  evidence 
was  introduced,  the  trial  judge  properly  instructed  the 
jury  upon  the  duties  of  the  physician:  that  he  must 
possess  ordinary,  etc.,  skill  and  knowledge ;  that  he  must 
use  ordinary  care  and  diligence ;  and  that  in  all  cases  of 
doubt  he  must  use  his  best  judgment;  but  that  in  cases 
where  competent  physicians  might  honestly  differ  as  to 
the  nature  of  the  disease  the  defendant  should  not  be 
held  responsible  for  an  error  of  judgment  reached  by 
the  exercise  of  due  skill  and  care,  etc.  While  the  rec- 
ords of  the  ease  do  not  show  that  there  were  any  special 
findings  of  fact  returned  by  the  jury,  yet  the  conclu- 
sion necessarily  follows  from  their  verdict,  which  gave 
the  plaintiff  damages  to  the  amount  of  five  thousand 
dollars,  that  they  found,  from  the  evidence  submitted, 
either  that  the  defendant  was  incompetent  or,  if  com- 
petent, that  he  did  not  exercise  ordinary  skill  and  care 
in  diagnosticating  the  case;  and  that  the  case  was  not 
one  in  which  competent  physicians  might  honestly  differ 
in  their  opinion  as  to  the  nature  and  extent  of  the  dis- 
ease after  making  a  careful  and  proper  examination. 


CIVIL  MALPRACTICE.  293 

Failure  to  give  Proper  Instructions. — Nor  does  the 
physician's  liability  necessarily  end  when  he  has  treated 
the  patient  with  all  due  skill  and  care,  exercising 
proper  judgment  and  using  the  most  approved  meth- 
ods of  treatment. 

If  the  character  of  the  injury  or  disease  is  such  that 
any  particular  method  of  nursing  is  necessary  to  avoid 
an  aggravation  of  the  injury  or  prevent  a  relapse,  or 
if  the  patient's  welfare  requires  that  he  shall  observe 
certain  rules  or  practices,  or  shall  avoid  any  particular 
indulgence,  the  physician  is  bound  to  inform  the  nurse 
or  patient,  or  both,  as  the  case  may  require,  of  the  con- 
dition he  wishes  to  avoid,  and  give  them  proper  instruc- 
tions as  to  the  care  and  treatment  best  calculated  to 
conduce  to  a  cure.  In  the  ease  of  Carpenter  vs.  Blake 
the  court  said :  "  If,  in  case  of  dislocation  of  the  elbow 
joint,  it  is  enough  for  the  physician  to  replace  the  bones, 
and  to  put  the  arm  on  a  pillow,  with  the  part  below 
the  joint  at  a  right  angle  with  that  above  it,  and  direct 
the  application  of  cold  water,  it  would  seem  to  be  proper, 
if  not  necessary,  that  the  attending  surgeon  should  in- 
form the  patient,  or  those  having  charge  of  him  or  her, 
of  the  necessity  of  maintaining  that  position;  and  if 
there  is  a  tendency  in  the  limb  to  become  straight,  or  if 
in  consequence  of  the  severity  of  the  injury  to  the  liga- 
ments about  the  joint  there  is  great  pain,  which  renders 
the  patient  nervous  and  restless,  thus  increasing  the 


294:   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

tendency  of  relaxation,  or  to  straighten,  and,  as  a  con- 
sequence, to  stiffen  the  joint,  the  danger  should  be  dis- 
closed, to  the  end  that  all  proper  precaution  may  be 
taken  to  prevent  it.  It  is  insisted  that  these  dangers 
were  imminent,  and  yet  no  word  was  given.  This  was, 
in  my  judgment,  culpable  negligence;  much  of  the  suf- 
fering the  plaintiff'  has  undergone,  and  much  of  the 
loss  she  has  sustained,  might  have  been  prevented  had 
the  defendant  done  what  it  was  clearly  his  duty  to  do, 
if  he  knew  the  consequences  which  might  result  from 
redislocating  the  joint  or  straightening  the  arm.''  * 

In  the  case  of  Beck  vs.  The  German  Klinik  et  al.,  f 
the  evidence  showed  that  the  plaintiff,  who  had  broken 
his  leg,  employed  the  defendants,  viz.,  the  German  Kli- 
nik, an  incorporated  hospital,  and  certain  physicians 
and  surgeons  members  of  that  concern,  to  treat  him; 
that  the  methods  and  appliances  which  were  used  in  the 
treatment  of  the  case  were  such  as  were  used  and  ap- 
proved of  by  physicians  who  were  possessed  of  and  who 
exercised  at  least  the  average  skill  of  the  medical  profes- 
sion as  a  body  at  that  time;  and  that  the  treatment 
seemed  to  have  been  proper  and  skillful,  and  the  leg, 
.when  the  splints  and  bandages  were  removed,  appeared 
all  right.    The  evidence  also  showed  that  after  the  gyp- 

*  Carpenter  vs.  Blake,  60  Barb.,  488. 

■j-  Beck  vs.  German  Klinik  et  al.,  78  la.,  696,  43  N.  W.  Rep.,  617, 
7  L.  R.  A.,  566. 


CIVIL  MALPRACTICE.  295 

sum  bandages,  used  to  keep  the  bones  in  place,  were  re- 
moved, the  defendants  directed  the  plaintiff  to  use  his 
limb  and  to  walk  with  crutches,  but  that  they  gave  him 
no  further  directions  as  to  the  manner  or  extent  of  such 
use.  The  evidence  further  showed,  or  tended  to  show,  that 
the  broken  bone  had  not  well  united,  either  because  of 
improper  treatment  or  because  of  its  diseased  condition, 
and  that  when  the  bandages  were  removed,  or  soon 
thereafter,  the  limb  at  the  wounded  part  was  crooked, 
and  that  it  became  necessary  to  perform  an  amputation. 
An  expert  witness  testified  upon  examination  of  the 
limb  after  amputation,  that  there  was  a  diseased  con- 
dition of  the  bone  which  might  have  been  caused  by  "  a 
splinter  or  a  muscle  getting  between  the  bones ;  and  in 
that  case  walking  Avould  irritate  and  produce  a  tend- 
ency to  disease."  He  further  said :  "  I  would  instruct 
my  patient  not  to  walk  on  a  leg  I  found  not  united." 
"  The  least  weight  of  the  foot,  after  patient  commenced 
walking,  would  tend  to  separate  at  the  top  "  (pointing 
to  a  portion  of  the  bone,  having  the  amputated  limb 
before  him).  "If  the  bone,  when  set,  confined  in  its 
apparatus  for  eight  weeks,  came  out  in  that  crooked 
condition  or  form,  then  the  tendency  of  the  use  of  that 
limb  in  walking  would  impair  its  efficiency  and  would 
induce  disease."  The  court,  in  commenting  upon  the 
legal  effect  of  the  evidence  above  given,  said :  "  The 
jury  were  authorized  to  find  that  plaintiff  had  no  cor- 


296    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

reet  instructions  as  to  the  proper  care  and  use  of  his 
wounded  leg ;  and  that  he  had  wrong  instructions  which 
directed  him  to  use  hi&  leg ;  that  the  diseased  condition 
was  caused  or  aggravated  by  the  use  of  the  leg,  which 
the  defendants  directed,  and  that  with  proper  instruc- 
tions, which  we  will  presume  plaintiff  would  have  fol- 
lowed, his  leg  would  have  been  saved,  or  at  least  the 
disease  of  the  bone  would  have  been  ameliorated  and 
he  would  have  escaped  much  suffering."  "  Defendants 
may  have  exercised  proper  care  and  used  proper  skill 
in  all  things,  yet,  under  the  law  of  the  case,  if  they 
omitted  to  give  plaintiff  proper  instructions  for  the 
care  and  use  of  his  wounded  leg  they  were  rightly  held 
liable  by  the  jury.  As  we  have  said,  the  jury  were 
authorized  to  find  for  plaintiff  under  the  evidence  on 
the  ground  of  defendants'  negligence  by  omission  to 
discharge  their  duty  to  instruct  plaintiff  as  to  the  care 
and  use  of  his  injured  leg." 

In  a  recent  Ohio  case  *  the  trial  judge,  in  instruct- 
ing the  jury  regarding  this  duty  of  the  physician,  stated 
the  law  very  clearly;  he  said:  "It  is  the  duty  of  the 
surgeon,  when  he  takes  charge  of  a  case,  such  as  a  broken 
femur  bone,  to  give  his  patient  all  necessary  and  proper 
instruction  as  to  what  care  and  attention  the  patient 
should  give  his  broken  limb  in  the  absence  of  the  sur- 

*  Tish  vs  Welker  et  al.,  4  Ohio  Leg.  News,  433. 


CIVIL   MALPRACTICE.  297 

geon,  and  the  caution  to  be  used  in  the  use  of  the  limb 
before  it  is  entirely  healed." 

The  case  in  which  this  instruction  of  law  was  re- 
quired by  the  facts  at  issue  happened  to  be  one  in 
which  the  patient  had  suffered  from  a  fracture  of  the 
femur — hence  the  narrowness  of  its  scope;  the  law  ap- 
plies equally  well,  however,  whether  the  patient  be  suf- 
fering from  a  fractured  femur  or  a  fractured  rib,  or 
whether  the  affliction  be  typhoid  fever  or  mumps. 
Proper  and  necessary  instructions  are  in  all  cases  re- 
quired by  the  law. 

Liability  for  Improperly  Discontinuing  Attendance. 
— In  an  earlier  chapter  of  this  work  the  implied  con- 
tract of  the  physician  that  he  will  continue  his  attend- 
ance upon  the  patient  so  long  as  his  condition  shall  re- 
quire it  has  been  considered.  Should  a  physician  fail 
to  pay  due  regard  to  this  obligation  and  cease  his  at- 
tendance at  a  time  when  by  the  exercise  of  an  honest 
and  properly  educated  judgment  he  might  have  deter- 
mined that  his  services  were  still  required,  he  will 
be  liable  to  an  action  for  damages  resulting  there- 
from.* 

Justice  Pryor,  in  an  instruction  to  the  jury,  ex- 
pressed the  law  very  clearly  and  forcibly.  He  said :"  The 
defendant  was  called  to  treat  the  plaintiff  for  a  miscar- 

*  Dale  vs.  Donaldson  Lumber  Co.,  48  Ark.,  188. 


298    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

riage.  He  visited  her  the  day  of  her  misfortune  and 
the  two  succeeding  days;  but  he  never  came  afterward. 
It  is  not  denied  that  when  he  ceased  his  visits  she  was 
not  cured  of  her  malady.  His  retainer  was  for  no  defi- 
nite period.  Upon  this  state  of  facts  the  question  is. 
Did  the  defendant  violate  his  duty  to  the  plaintiff  by 
his  abandonment  of  her?  When  a  physician  engages, 
as  here,  to  attend  a  patient  without  limitation  of  time, 
he  can  not  cease  his  visits  except,  first,  with  the  eon- 
sent  of  the  patient;  or,  secondly,  upon  giving  the  pa- 
tient timely  notice,  so  that  he  may  employ  another  doc- 
tor; or,  thirdly,  when  the  condition  of  the  patient  is 
such  as  no  longer  to  require  medical  treatment,  and  of 
that  condition  the  physician  must  Judge  at  his  peril. 
Here  it  is  not  shown  that  the  plaintiff  was  no  longer 
in  need  of  medical  attention ;  so  that  the  defendant  had 
no  right  to  discontinue  his  attendance,  unless  either  the 
plaintiff  consented  or  he  gave  her  proper  notice ;  and  if 
he  left  her  without  such  consent  or  such  notice  he  was 
guilty  of  grave  professional  negligence.  The  defend- 
ant swears  that  at  his  last  visit  he  notified  the  plain- 
tiff that  he  was  going  out  of  town,  and  indicated  to 
her  a  physician  who  would  attend  her  in  his  stead. 
If  this  statement  be  true,  the  defendant's  absence  is 
excused,  and  you  must  exonerate  him  from  this  im- 
putation of  neglect.  But  the  defendant's  story  is  de- 
nied by  the  plantiff's  witnesses,  and  their  testimony 


CIVIL  MALPRACTICE.  299 

tends  to  prove  that  he  abandoned  her  without  leave  and 
without  notice."  * 

Upon  the  law  governing  this  liability  there  seems 
to  be  no  question  or  disagreement,  it  is  upon  the  facts 
that  the  parties  conflict,  the  defendant  usually  testify- 
ing that  he  notified  the  patient  of  his  inability  to  ren- 
der further  services ;  the  patient,  on  the  other  hand,  tes- 
tifying that  no  such  notice  was  given,  f 

In  the  cases  considered  above  the  services  of  the 
physicians  were  rendered  at  the  patients'  homes,  but 
the  principle  of  law  controlling  is  the  same  when  the 
services  are  rendered  by  the  physician  at  his  office.  Of 
course,  if  the  patient  comes  to  the  office  of  a  physician 
from  whom  he  has  received  proper  treatment  and  then 
fails  to  return  for  further  treatment,  in  consequence 
of  which  he  suffers  injury,  the  physician  is  not  liable 
to  an  action  for  such  injury.  J  But  if  a  physician  who 
is  receiving  and  treating  a  patient  at  his  office  fails 
through  his  own  fault  or  neglect  to  meet  the  patient 
at  the  usual  or  proper  time  and  place,  whereby  the  pa- 
tient suffers  injury,  then  the  physician  is  liable  in  dam- 
ages to  the  amount  of  the  injury  so  sustained. 

Eight  to  Leave  Practice  Temporarily. — The  preced- 
ing question  brings  us  to  the  consideration  of  when  and 

*  Becker  vs.  Janinski,  2*7  Ahh.  N.  C,  45. 

f  Ballon  vs.  Prescott,  04  lie.,  COS;    Daibour  vs.  Martin,  62  Mo., 
636. 

X  Dashiell  v.f.  Griffith,  84  Md.,  363. 
20 


300    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

under  what  circumstances  the  physician  may  with  legal 
safety  go  away  and  leave  his  practice.  The  law  books 
show  very  few  cases  throwing  light  upon  this  question, 
which  probably  argues  that  physicians  exercise  great 
care  in  determining  when  they  may  safely  leave  their 
practice,  and  also  in  selecting  competent  substitutes  to 
whose  care  the  health  and  lives  of  their  patients  are  to 
be  temporarily  intrusted. 

As  a  general  rule  it  can  be  laid  down  that  a  physi- 
cian should  never  go  away  and  leave  his  practice  with- 
out arranging  for  some  competent  physician  to  attend 
his  patients,*  but  under  what  circumstances  and  con- 
ditions he  is  justified  in  leaving  his  patients  in  the  care 
of  such  a  physician  is  not  quite  so  clear. 

It  is  very  easy  to  see  upon  principle  that  a  physi- 
cian, possessing  adequate  skill  and  knowledge  to  en- 
able him  to  understand  the  condition  of  his  patients, 
who,  by  the  careful  exercise  of  his  good  judgment,  de- 
termines with  a  reasonable  degree  of  certainty  that 
they  are  beyond  the  point  of  danger,  may  safely  leave 
them  under  the  care  of  a  competent  substitute;  but 
whether  the  law  will  require  so  high  a  test  of  care  is 
doubted.  We  have  but  just  quoted  an  instruction  from 
Justice  Pryor,  in  which  he  said :  "  The  defendant  swears 
that  at  his  last  visit  he  notified  the  plaintiff  that  he  was 

*  Pelky  vs.  Palmer,  109  Mich.,  561,  67  N.  W.,  561. 


CIVIL  MALPRACTICE.  301 

going  out  of  town,  and  indicated  to  her  a  physician  who 
would  attend  her  in  his  stead.  If  this  statement  be 
true,  the  defendant's  absence  is  excused,  and  you  must 
exonerate  him  from  this  imputation  of  neglect."  * 
While  in  this  case  the  patient  was  without  doubt  in 
grave  need  of  medical  attendance,  yet  there  is  no  evi- 
dence shown  in  the  report  that  her  life  was  in  imminent 
danger  or  that  she  was  even  in.  a  critical  condition. 
And,  again,  in  the  case  of  Dashiell  vs.  Griffith,  f  Justice 
Eoberts  says :  "  If  the  defendant  had  in  his  treatment 
of  the  finger,  prior  to  the  24th  of  February,  exercised 
reasonable  care,  skill,  and  diligence,  and  then,  because 
of  the  illness  of  his  father,  had  turned  the  plaintiff 

over  to  Dr. ,  a  competent  physician,  for  the  further 

treatment  of  her  finger,  and  the  plaintiff  refused  to  go 
to  Dr. for  treatment,  then  the  liability  of  the  de- 
fendant ceased."  But  here  again  the  plaintiff  was 
merely  suffering  from  a  felon,  and  when  the  de- 
fendant last  saw  the  patient  it  was  thought  that 
the  diseased  member  was  doing  as  well  as  might 
be  expected.  In  the  case  of  Ewing  vs.  Goo(le,X  de- 
cided in  the  United  States  circuit  court,  the  defend- 
ant had  operated  upon  the  plaintiff  for  a  cataract. 
The  operation  took  place  on  the  25th  of  September;  it 

*  Becker  vs.  Janinski,  2*7  Abb.  N.  C,  45, 
f  Dashiell  v/>.  Griffith,  84  Md  ,  363. 
X  Ewing  vs.  Goode,  78  Fed.,  442. 


302    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

was  characterized  a  smooth  and  successful  operation, 
and  the  wound  was  quite  healed  in  about  ten  days. 
About  the  19th  of  ISJ'ovember  following  the  plaintiff 
complained  of  pain  in  the  eye;  the  defendant  care- 
fully explored  the  eye  with  the  ophthalmoscope,  but 
could  discover  no  cause  for  the  pain.  The  pain  con- 
tinued, and  repeated  examinations  were  made  at  short 
intervals  apart,  but,  as  no  cause  for  the  pain  could  be 
found  in  the  eye,  it  was  diagnosticated  as  neuralgia  of 
the  fifth  nerve  and  treated  as  such.  On  the  9th  of  De- 
cember the  defendant  thought  he  saw  a  slight  increase  in 
the  tension  of  the  eye,  but  was  doubtful  about  it.  This 
was  a  symptom  indicating  glaucoma,  and  one  for  which 
the  eye  had  been  carefully  examined  at  short  intervals 
since  the  pain  commenced;  the  defendant  accordingly 
prescribed  eserine.  On  the  10th  of  December  the  de- 
fendant examined  the  eye  again  and  found  no  increased 
tension  and  no  other  evidence  of  a  glaucomatous  condi- 
tion, though  the  pains  continued.  On  the  11th  of  De- 
cember he  confirmed  his  conclusion  that  there  was  no 
increased  tension  by  making  another  examination. 
After  this  he  remained  in  the  city  until  the  18th  of 
December,  and  receiving  no  calls  from  the  plaintiff 
went  away,  leaving  his  practice  in  the  hands  of  a  com- 
petent physician,  who  understood  the  plaintiff's  case 
and  had  assisted  in  the  operation  on  the  eye  and  had 
examined  it  after  the  pain  commenced.     On  January 


CIVIL  MALPRACTICE.  303 

6th  the  defendant  returned  and  found  an  increased  ten- 
sion amounting  to  +  1  and  distinct  symptoms  of  glau- 
coma. An  operation  was  promptly  performed  with  the 
hope  of  relieving  the  pain  and  retaining  the  eyeball. 
This  operation  proving  unsuccessful  in  accomplishing 
the  desired  effect,  the  eyeball  was  finally  extracted. 
The  court  gave  special  attention  to  the  right  of  the  de- 
fendant to  leave  his  practice  on  the  18th  of  December 
as  he  did.  After  carefully  reviewing  all  of  the  above 
facts,  Judge  Taft  said :  "  As  to  the  right  of  (the  de- 
fendant) to  leave  the  city  on  the  18th  of  December, 
when  his  patient  had  not  called  him  for  a  week,  and 
while  she  was  presumably  following  the  precautionary 
and  alleviating  prescriptions  of  eserine  and  phenacetine, 
I  do  not  think  there  can  be  any  doubt,  if  he  made  pro- 
visions for  the  attendance  of  a  competent  oculist  in 
case  of  a  call." 

All  of  the  cases  cited  above  are  those  in  which  the 
physician's  right  to  temporarily  leave  his  practice  is 
upheld,  and  a  careful  examination  of  the  reports  has 
failed  to  discover  a  precedent  in  which  the  right  of  the 
physician  to  leave  his  practice  in  the  hands  of  another 
competent  physician  is  denied ;  yet  it  seems  that  the 
right  to  leave  one's  practice  should  depend  upon  the 
same  principles  which  ordinarily  are  applied  as  a  test 
of  liability — viz.,  if  the  physician,  by  the  careful  exer- 
cise of  ordinary  skill  and  knowledge,  believes  that  he 


304    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

may  safely  leave  his  patients  to  the  care  of  another,  he 
will  be  justified  in  so  doing;  if,  on  the  other  hand,  a 
patient's  condition  is  such  that  a  physician  in  his  best 
judgment  thinks  a  change  of  physicians  would  be  in- 
jurious, nothing  short  of  dire  necessity  should  induce 
him  to  permit  the  substitution. 

Liability  of  Physician  for  Negligence  of  One  whom 
he  Recommends. — Having  determined  that  the  physi- 
cian has  under  ordinary  circumstances  the  right  to  leave 
his  practice  in  the  hands  of  a  competent  substitute,  it 
becomes  pertinent  to  consider  what,  if  any,  responsi- 
bility such  physician  bears  for  the  acts  of  his  substi- 
tute. Sliould  the  physician  recommended  be  in  a  legal 
sense  the  agent  of  the  physician  recommending  him, 
— that  is,  if  he  is  employed  by  him  as  an  assistant — ^then 
the  law  applies  the  legal  maxim  qui  facit  per  alium 
facit  per  se,  and  holds  the  recommending  physician 
liable  for  all  negligent  or  improper  professional  con- 
duct of  his  agent.  But  if,  on  the  other  hand,  the  ph^'si- 
cian  recommended  is  in  independent  practice,  and  is 
properly  esteemed  a  man  of  ordinary  professional  ability 
and  of  proper  discretion,  the  physician  recommending 
him  will  not  be  held  responsible  for  any  error  he  may 
commit. 

"When  a  regular  railroad  physician,  upon  going  away 
for  a  short  time,  gave  instructions  that  if  anything  hap- 
pened the  railroad  company  should  call  upon  a  certain 


CIVIL  MALPRACTICE.  805 

other  doctor,  and  an  accident  did  occur  and  the  desig- 
nated physician  was  called  in  and  improperly  treated 
the  case,  it  was  held  that  the  regular  physician  was  not 
liable  for  such  improper  treatment,  there  being  no  evi- 
dence to  show  that  the  physician  recommended  was  iu 
the  employ  of  the  defendant.* 

In  the  case  of  Myers  vs.  Ilolborn,!  a  physician 
promised  to  attend  a  patient  during  confinement.  A 
short  time  before  the  event  took  place  he  left  the  city 
for  a  three  days'  vacation,  but  first  visited  the  patient 
and  made  an  examination  of  her  condition,  from  whicli 
he  concluded  that  his  services  would  not  be  required  for 
several  days.  During  his  absence,  however,  the  child 
was  born,  and  according  to  arrangements  made  by  the 
defendant,  before  leaving,  the  patient  was  attended  by 
another  physician,  who  severed  the  umbilical  cord  so 
near  the  child's  body  that  it  was  impossible  to  tie  it,  in 
consequence  of  which  the  child  died.  An  action  was 
brought  by  the  husband  against  the  physician  employed 
to  attend  the  case  for  this  negligence  of  his  substitute, 
but    the    liability   was    denied    by    the    court,    which, 

speaking  through  Justice  Gummere,  said :  "  Dr.  

(the  physician  recommended  to  attend  the  patient)  and 
the  defendant  were  each  of  them  practising  physicians 
within  the  State,  having  no  business  connections  with 

*  Hitchcock  vs.  Burgett,  38  Mich.,  501. 

f  Myers  vs.  Holboin,  29  Vroom,  193,  33  Atl.  Rep.,  389. 


306    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

one  another,  except  that  Dr.  was  attending  the 

patients  of  the  latter  while  he  was  temporarily  absent. 

Even  if  it  be  admitted,  therefore,  that  Dr.  was 

employed  by  the  defendant  to  attend  npon  the  wife  of 
the  plaintiff,  that  fact  did  not  render  the  defendant 
liable  for  his  neglect  or  want  of  skill  in  the  performance 
of  his  service,  for  an  examination  of  the  authorities 
will  show  that  a  party  employing  a  person  who  follows  a 
distinct  and  independent  occupation  of  his  own  is  not 
responsible  for  the  negligent  or  improper  act  of  the 
other." 

it  will  be  observed  from  the  foregoing  opinion  that 
in  'Rew  Jersey  the  courts  go  so  far  as  to  hold  that  a  phy- 
sician can  not  be  held  for  the  negligence  of  another  phy- 
sician whom  he  employs  to  perform  certain  professional 
services,  if  such  other  physician  has  a  distinct  and  in- 
dependent practice.  While  there  is  no  question  about 
the  correctness  of  the  principle  of  law  by  which  the 
court  arrived  at  this  conclusion,  it  is  doubted  whether 
the  courts  of  other  States  will  find  the  principle  appli- 
cable to  this  particular  condition;  therefore,  a  physi- 
cian can  not  be  safely  advised  to  employ  another  physi- 
cian to  attend  to  his  practice,  even  though  such  other 
physician  does  enjoy  an  independent  practice,  if  he  de- 
sires to  escape  liability  for  the  professional  errors  of 
such  other  physician. 

A  question  which  might  be  suggested  by  those  pre- 


CIVIL   MALPRACTICE.  307 

ceding  is  one  which  arose  in  the  case  of  Jones  vs. 
Vroom.*  In  this  case  the  defendant,  a  physician  in 
general  practice,  who  was  attending  the  plaintiff  for 
typhoid  fever,  was  informed  by  her  that  she  had  a  pain 
in  one  of  her  eyes  and  that  the  sight  was  beginning  to 
leave  it,  and  was  asked  to  send  her  an  oculist.  The  de- 
fendant laughed  at  her,  and  told  her  there  was  nothing 
the  matter  with  the  eye,  but  upon  further  request  prom- 
ised to  send  her  an  oculist.  He  did  not  comply  with  the 
request,  however,  and  as  an  excuse  for  not  doing  so  said 
he  had  forgotten  the  matter.  Finally  the  nurse  tele- 
phoned for  an  oculist,  who  said,  upon  examining  the 
eye,  that  he  could  do  nothing  for  it,  but  that  he  might 
have  done  something  if  he  had  been  sent  for  sooner. 
The  plaintiff  sued  the  defendant  for  not  securing  the 
oculist  when  requested,  but  the  defendant's  liability 
was  denied.  The  court  said :  "  The  defendant  was  em- 
ployed to  treat  her  for  fever,  and  his  employment  im- 
posed no  duty  on  him  to  provide  her  with  a  specialist 
for  her  eye."  This  case  was  tried  simply  upon  the 
question  indicated  in  this  quotation ;  it  therefore  is  pos- 
sible that  other  questions  might  have  been  raised  upon 
which  a  different  decision  could  be  reasonably  expected. 
Any  way,  it  is  never  safe  for  one  to  undertake  to  do  a 
thing  without  fulfilling  the  agreement,  whether  there  is 

*  Jones  vs.  Vroom,  8  Colo.  A  pp.,  143. 


308    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

a  consideration  or  not,  and  a  physician  can  not  safe- 
ly ignore  complaints  regarding  conditions  which  by  any 
probability  relate  to  the  condition  for  which  he  is  treat- 
ing the  patient. 

That  Services  were  Gratuitous  is  no  Defense. — In  ex- 
amining the  contract  of  the  physician  as  implied  from 
his  relations  to  his  patients  it  was  observed  that  the 
fact  that  his  services  were  rendered  without  compensa- 
tion or  reward  did  not  alter  the  character  of  his  obliga- 
tions to  his  patient  or  relieve  him  from  liability  for  the 
breach  of  such  obligation.  This  was  not  always  consid- 
ered the  law,  nor  is  it  now  the  law  as  applied  to  the 
ordinary  relations  and  affairs  of  life.  Under  the  com- 
mon law  the  degrees  of  negligence  are  usually  charac- 
terized as  slight,  ordinary,  or  gross,  and  the  particular 
degree  of  negligence  of  which  the  defendant  must  have 
been  shown  to  be  guilty  in  order  to  fix  liability  upon 
him  varied  in  inverse  ratio  to  his  compensation.  If 
he  was  well  paid  for  performing  certain  services  he 
could  be  guilty  of  slight  negligence  only  at  his  peril ;  if, 
on  the  other  hand,  he  received  no  compensation,  noth- 
ing short  of  gross  negligence  would  be  considered  cul- 
pable; but  where  the  compensation  was  the  usual  and 
ordinary  amount  liability  would  attach  for  damages  suf- 
fered from  ordinary  negligence. 

This  was  the  rule  which  the  courts  applied  at  an 
early  date  in  fixing  the  liability  of  physicians  for  pro- 


CIVIL  MALPRACTICE.  309 

fessional  errors.*  The  courts  very  soon,  however,  de- 
tected the  pernicious  effects  which  might  be  reasonably 
expected  to  follow  the  application  of  such  a  rule  of  lia- 
bility to  the  practice  of  a  learned  profession  like  that 
of  medicine,  which  deals  not  only  with  the  health  and, 
in  a  great  measure,  the  happiness  of  the  people,  but 
their  very  lives ;  and,  accordingly,  by  a  line  of  well-con- 
sidered decisions  they  have  held  the  physician  strictly 
to  the  prescribed  requirements  of  professional  ability 
and  care,  whether  his  services  are  paid  for  or  gratui- 
tous.! The  reason  and  the  necessity  for  this  rule  are 
clearly  and  urgently  expressed  in  an  instruction  deliv- 
ered by  Justice  Pryor,  from  which  an  extended  quota- 
tion is  made  in  Chapter  II  of  this  work.  J 

The  application  of  the  rule  of  liability  for  error 
or  neglect  in  medical  treatment,  whether  compensation 
is  made  or  not,  is  only  applicable,  it  must  be  remem- 
bered, in  cases  where  the  defendant  holds  himself  out 
as  a  physician  and  surgeon.  If  one  not  professing  to 
be  a  qualified  physician,  and  the  patient  not  under- 
standing him  to  be  one,  undertakes  to  render  medical 
services  without  compensation,  such  services,  though 
improperly  rendered,  will  be  considered  by  the  court  as 

*  Shearman  and  Redfield  on  Negligence ;  Richey  vs.  "West,  23  111., 
385. 

t  Du  Bois  vs.  Decker,  130  N.  Y.,  325;  Becker  vs.  Janinski,  27  Abb. 
N.  C,  45 ;  McNevins  vs.  Lowe,  40  111.,  209  ;  Baird  vs.  Gillett,  47  N.Y.,  186. 

X  See  page  66. 


310    THE  LAW  IN  ITS  RELATIONS  TO  PnYSIClANS. 

a  mere  kindly  or  neighborly  office  and  incapable  of 
supporting  an  action  for  damages.* 

Liability  of  Other  than  Qualified  Physicians  for  Mal- 
practice.— From  the  foregoing  paragraph  it  must  not 
be  inferred  that  one  who,  in  fact,  is  not  a  qualified  phy- 
sician, but  who  holds  himself  out  as  such,  may  escape 
any  of  the  liability  which  attaches  to  a  regular  physician 
for  improper  treatment.  The  mere  fact  that  one  so- 
licits patients,  representing  himself  as  competent  to 
treat  them,  brings  with  it  all  of  the  penalties  to  which 
the  regular  physician  is  liable.  Justice  Lyon,  in  the 
case  of  Nelson  vs.  Harrington,!  said  the  rule  is  ele- 
mentary that  a  physician  or  surgeon,  or  one  who  holds 
himself  out  as  such,  whether  duly  licensed  or  not,  when 
he  accepts  an  employment  to  treat  a  patient  profes- 
sionally, must  exercise  such  reasonable  care  and  skill  in 
that  behalf  as  are  usually  possessed  and  exercised  by 
physicians  or  surgeons  in  good  standing,  of  the  same 
system  or  school  of  practice,  in  the  vicinity  or  locality 
of  his  practice,  having  due  regard  for  the  advanced 
state  of  medical  or  surgical  science  at  that  time.  In 
this  case  the  defendant  was  a  clairvoyant  physician  or 
spiritualist,  who  professed  to  have  no  medical  educa- 
tion or  training ;  yet  the  mere  fact  that  he  held  himself 
out   as   being   possessed   of   ability   to   treat   patients 

*  Higgins  vs.  McCabe,  126  Mass.,  13. 
■f  Nelson  vs.  Harrington,  72  Wis.,  591. 


CIVIL  MALPRACTICE.  311 

through  the  occult  aid  vouchsafed  him,  and  accepted 
the  duties  and  undertook  the  functions  of  a  physician, 
rendered  him  amenable  to  the  same  law  governing  their 
liabilities. 

Whether  or  not  in  such  cases  the  defendant  does 
hold  himself  out  as  a  physician  is  usually  a  question  of 
fact  for  the  jury  to  decide  from  the  evidence,  and  it  is 
often  a  question  requiring  nice  discrimination.  In  an 
early  Wisconsin  case  the  evidence  adduced  at  the  trial 
to  Bhow  that  the  defendant  held  himself  out  as  a  physi- 
cian was  that  he  was  called  as  a  physician  in  the  first 
instance ;  that  he  attended  the  case  and  consulted  with 
a  certain  doctor;  and  that  he  was  called  doctor  during 
his  attendance.  The  evidence  showed  that  he  attended 
as  surgeon  seven  weeks,  assuming  the  whole  direction 
and  treatment  of  the  injured  limb,  and  went  into  con- 
sultation with  other  physicians  and  surgeons.  Eegard- 
ing  this  evidence  the  supreme  court  said:  "  These  facts, 
though  not  perhaps  direct  proof  of  his  holding  himself 
out  as  a  physician  and  surgeon,  are  sufficient  to  go  to 
the  jury  as  circumstantial  evidence."  * 

In  an  early  Ohio  case  the  evidence  showed  that  a 
farmer  represented  himself  as  a  cancer  doctor,  having 
skill  and  experience  in  the  treatment  and  cure  of  can- 
cers.   He  claimed  also  to  be  in  possession  of  a  certain 

*  Reynolds  vs.  Graves,  3  Wis.,  416. 


312    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

recipe  or  prescription,  procured  from  a  certain  cancer 
specialist,  that  would  remove  cancers  without  affecting 
sound  tissue.  This  evidence  was  considered  sufficient 
to  render  him  subject  to  the  same  liability  as  a  quali- 
fied physician  in  the  treatment  of  a  malady  of  the 
character  he  professed  to  treat.* 

And  in  a  more  recent  Illinois  case  one  suffering 
from  an  injured  finger  went  to  a  druggist  for  treatment, 
supposing  him  to  be  a  physician.  The  druggist  treated 
the  finger  wrongly,  which  resulted  in  an  aggravation  of 
the  injury  and  final  loss  of  the  finger. 

The  court  was  of  the  opinion  that  the  druggist,  by 
treating  the  finger,  the  plaintiff  believing  him  to  be  a 
doctor,  held  himself  out  as  such,  and  was  consequently 
chargeable  in  that  character.! 

General  Scope  of  Physician's  Liability. — Innumer- 
able questions  of  liability  diversified  in  their  nature  and 
character  may,  and  as  a  matter  of  fact  do,  arise,  both 
from  inadvertent  and  willful  violation  by  the  physician 
of  his  duties  and  obligations  to  his  patients.  The  cases 
heretofore  considered  are  those  in  which  the  physician 
has  failed  to  treat  his  patient  with  proper  skill  or  care, 
or  has  been  deficient  in  performing  some  duty  nearly 
related  thereto.  An  examination  will  soon  be  made  of  a 
few  cases  arising  from  acts  either  of  omission  or  of  com- 

*  Musser  vs.  Chase,  29  Ohio  St.,  511. 
f  Matthei  vs.  Wooley,  69  111.  App.,  654. 


CIVIL  MALPRACTICE.  313 

mission,  which  contravene  duties  of  a  wider  scope  that 
he  owes  to  his  patients  or  employers.  It  will  be  ob- 
served, however,  that  in  many  of  the  illustrations  fol- 
lowing the  familiar  principles  heretofore  discussed  will 
be  involved. 

Necessity  of  Consent  to  Surgical  Operations. — As  a 
general  proposition  of  law,  a  surgeon  must  have  con- 
sent before  operating  upon  a  patient.  As  a  matter  of 
law,  however,  the  courts  are  disposed  to  imply  consent 
to  perform  the  particular  operation  from  the  fact  that 
the  patient  has  placed  himself  under  the  surgeon's  care. 
A  recent  English  case,  which  has  justly  provoked  con- 
siderable unfavorable  comment,  is  that  of  Beatty  vs. 
Cullingworth.*  In  this  case  the  plaintiff,  an  unmar- 
ried woman,  who  was  about  to  submit  to  the  operation 
of  ovariotomy,  told  the  defendant,  who  is  said  to  be  one 
of  the  most  eminent  London  surgeons,  that  if  both 
ovaries  were  found  to  be  diseased  he  must  remove  nei- 
ther. He  replied,  "  You  must  leave  that  to  me."  The 
plaintiff  denied  hearing  this  remark.  Both  ovaries 
were  found  diseased  and  were  removed. 

The  plaintiff  was  engaged  to  be  married,  but  upon 
learning  that  both  ovaries  had  been  removed  broke  her 
engagement,  and  later  brought  suit  against  the  sur- 
geon for  malpractice.    Justice  Hawkins,  upon  the  trial 

*  Beatty  vs.  CuUingworth,  Q.  B.  Div.,  44  Cent  L.  J.,  153. 


314    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

of  the  case,  charged  the  jury  in  effect  that  the  plaintiff 
had  tacitly  consented  to  the  operation,  whereupon  they 
returned  a  verdict  for  the  defendant.  A  prominent 
legal  journal,  in  commenting  on  the  case,  says :  "  The 
action  of  the  court  in  this  case  has  met  with  very  general 
criticism  upon  the  ground  that  the  facts  involving  a 
direct  prohibition  would  seem  to  exclude  the  possibility 
of  imphdng  consent.  As  a  contemporary  says,  it  is  one 
thing  for  a  surgeon  to  refuse  to  operate  unless  unlim- 
ited discretion  is  confided  to  him  and  quite  another 
thing  to  deliberately  disobey  express  instructions.  Un- 
doubtedly the  defendant's  wisest  course  would  have  been 
to  refuse  to  operate  unless  the  scope  of  his  authority 
was  agreed  upon  in  advance."  * 

This  case  can  not  be  safely  considered  the  law  in 
this  country,  for  an  American  court  would  not,  it  is 
thought,  instruct  the  jury,  under  like  circumstances, 
that  there  was  a  tacit  consent  to  the  operation,  but 
would  leave  it  for  the  jury  to  determine  whether  the 
evidence  before  them  showed  a  tacit  consent.  In  short, 
in  nearly  all  cases  of  this  sort  the  question  is  one  of 
fact,  for  the  determination  of  the  jury,  rather  than  of 
law. 

An  important  question  of  law  arises,  however,  when 
an  operation  is  performed  upon  a  wife  or  upon  a  child, 

*  44  Cent  L.  J.,  153. 


CIVIL  MALPRACTICE.  315 

as  to  whether  or  not  the  surgeon  must  first  secure  the 
consent  of  the  husband  or  parent.  In  a  well-considered 
case  the  court  of  appeals  of  Maryland  denies  that  a 
husband  has  the  right  to  withhold  his  consent  to  the 
performance  of  a  necessary  surgical  operation  upon  his 
wife.  The  court,  speaking  through  Justice  Yellott,  said : 
"  Surely  the  law  does  not  authorize  the  husband  to  say  to 
his  wife.  You  shall  die  of  the  cancer;  you  can  not  be 
cured,  and  a  surgical  operation  affording  only  temporary 
relief  will  result  in  useless  expense.  The  husband  has  no 
right  to  withhold  from  his  wife  the  medical  assistance 
which  her  case  might  require."  * 

Following  the  reasoning  of  this  decision,  one  can  not 
see  why  a  physician  should  be  required  to  secure  the 
consent  of  a  parent  before  operating  upon  a  child,  pro- 
vided the  child  was  of  proper  age  and  discretion  to  un- 
derstand the  nature  and  effect  of  the  operation  pro- 
posed. As  there  seems  to  be  no  precedent  upon  this 
particular  point,  the  question  can  not  be  authoritative- 
ly answered  until  a  case  involving  the  question  shall 
arise  which  the  parties  thereto  think  sufficiently  impor- 
tant to  take  to  a  court  of  last  resort. 

Right  to  Perform  Autopsy. — Somewhat  analogous  to 
the  right  of  the  surgeon  to  operate  upon  a  patient  is 
the  right  of  the  physician  to  perform  an  autopsy,  ex- 
cept that,  from  the  nature  of  the  case,  the  consent  of 

*  Janney  vs.  Housekeeper  et  al.,  VO  Md.,  162. 
21 


316    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  subject  can  not  be  gained  in  the  latter  class  of 
operations. 

Upon  the  legal  status  of  a  dead  body  there  is  an 
almost  confusing  wealth  of  legal  lore  coming  down  to  us 
through  the  English  courts  from  the  early  days  of 
Christian  England.  The  burial  of  the  dead  in  church- 
yards in  England  is  supposed  to  have  been  introduced 
by  Cuthbert,  Archbishop  of  Canterbury,  in  the  year 
750.  Whereupon  the  protection  and  control  over  the 
repose  of  the  dead  gradually  passed  from  the  authority 
of  the  secular  courts  to  that  of  the  ecclesiastical  tribu- 
nals. The  secular  courts,  being  deprived  of  all  author- 
ity over  the  dead,  looked  upon  the  cadaver  as  not  being 
the  subject  of  a  property  right,  but  confined  themselves 
to  the  protection  of  the  monument  and  other  external 
emblems  of  grief  erected  by  the  living.  Lord  Coke, 
chief-justice  of  England,  expressed  this  condition  in  the 
learned  and  ponderous  style  of  his  time  as  follows :  "  It 
is  to  be  observed  that  in  every  sepulchre  that  hath  a 
monument  two  things  are  to  be  considered — viz.,  the 
monument,  and  the  sepulture,  or  buriall  of  the  dead. 
The  buriall  of  the  cadaver — that  is,  caro  data  vermibus 
— is  nullius  in  honis,  and  belongs  to  the  ecclesiastical 
cognizance ;  but  as  to  the  monument,  action  is  given, 
as  hath  been  said,  at  the  common  law  for  the  defacing 
thereof."  * 

*  Third  Inst.  (Coke),  203. 


CIVIL  MALPRACTICE.  31Y 

That  adequate  protection  to  the  dead  is  necessary 
is  too  obvious  to  permit  of  discussion;  and  as  the  eccle- 
siastical court  is  unknown  to  our  government,  the  func- 
tions which  in  England  vested  in  that  court  must  here 
be  exercised  by  our  courts  of  law. 

In  exercising  these  functions  relative  to  the  subject 
under  consideration,  they  have,  perhaps  with  a  single 
exception,  in  respect  to  the  learned  precedents  of  the 
English  courts,  refused  to  hold  a  dead  body  as  strictly 
property,  yet  they  recognize  and  protect  the  right  of  the 
relatives  of  a  deceased  person  to  the  custody  and  con- 
trol of  the  body. 

The  relatives  in  whom  this  right  vests  are,  first,  the 
husband  or  wife  of  the  deceased ;  second,  if  no  husband 
or  wife  survives,  then  the  children ;  third,  if  there  is  no 
husband  or  wife  and  no  children,  then,  first,  the  father, 
second,  the  mother;  fourth,  after  them  the  brothers 
and  sisters  of  the  deceased ;  fifth,  after  them  the  next  of 
kin,  according  to  the  course  of  the  common  law,  to  the 
remotest  degree,  according  to  the  law  of  descent  of  per- 
sonal property. 

This  right  involves  and  carries  with  it  a  duty ;  more 
particularly,  it  is  both  a  right  and  a  duty:  a  right  to 
the  custody,  care,  and  protection  of  the  body  of  the 
deceased  from  the  moment  the  breath  leaves  it,  and  the 
duty  of  nccording  to  it  decent  Christian  burial. 

In  referring  to  this  right,  in  the  case  of  Foley  vs. 


318    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Phelps,*  Justice  Patterson  said :  "  The  right  is  to  the 
possession  of  the  corpse  in  the  same  condition  it  was  in 
when  death  supervened.  It  is  the  right  to  what  re- 
mains when  the  breath  leaves  the  body,  and  not  merely 
to  such  a  hacked,  hewn,  and  mutilated  corpse  as  some 
stranger  . . .  may  choose  to  turn  over  to  an  afflicted  rela- 
tive." In  this  case  the  question  arose,  for  the  first  time 
in  New  York,  whether  one  performing  a  post-mortem 
examination  without  the  consent  of  the  widow  of  de- 
ceased was  liable  to  her  in  damages.  The  court  in  a 
learned  and  elaborate  opinion  examined  the  law  and 
the  principles  applicable  to  the  case,  and  came  to  the 
logical  conclusion  that  whenever  the  widow's  "  right  to 
the  possession  of  the  corpse  in  the  same  condition  it  was 
in  when  death  supervened  "  was  violated,  such  violation 
furnished  a  ground  for  a  civil  action  for  damages. 

Practically  the  same  question  had  arisen  in  the  case 
of  Larson  vs.  Chase, f  in  which  the  court  not  only  held 
there  was  a  cause  of  action,  but  that  mental  suffering 
caused  by  the  unlawful  act  was  a  distinct  element  of 
damages. 

In  the  case  of  Burney  vs.  Children's  Hospital,^  a 
father  placed  his  child  in  a  hospital  for  treatment ;  the 
child  died,  and  a  post-mortem  examination  was  per- 

*  Foley  vs.  Phelps,  1  App.  Div.,  551. 

■f  Larson  vs.  Chase,  47  Minn.,  307. 

X  Burney  vs.  Children's  Hospital,  169  Mass.,  57,  38  L.  R.  A.,  413. 


CIVIL  MALPRACTICE.  319 

formed  without  his  consent.  The  father  brought  suit 
against  the  hospital  for  damages.  The  court,  following 
the  reasoning  of  the  former  decision,  said :  "  The 
father,  as  the  natural  guardian  of  the  child,  was  entitled 
to  the  possession  of  its  body  for  burial.  Being  entitled  to 
the  possession  of  the  body  for  the  purposes  of  burial,  is 
not  his  right  against  one  who  unlawfully  interferes 
with  it,  and  mutilates  it,  as  great  as  it  would  be  if  the 
body  were  buried  in  his  lot,  and  was  thence  unlawfully 
removed?  That  an  action  may  be  maintained  in  the 
latter  case  we  have  already  seen,  and  we  are  of  the 
opinion  that  it  may  be  in  the  former." 

As  both  reason  and  justice  commend  the  conclu- 
sion arrived  at  by  these  courts,  there  can  be  no  doubt 
that  the  precedents  will  be  followed  whenever  the  ques- 
tion arises,  and  that  a  physician  who  performs  an  au- 
topsy without  the  consent  of  the  person  having  the 
right  of  custody  of  the  deceased,  does  so  at  his  peril. 

There  are,  however,  cases  in  which  such  operations 
may  be  performed  without  consent  and  yet  no  liability 
exist;  these  cases  are  where  the  post-mortem  is  per- 
formed in  accordance  with  the  directions  of  law.  The 
statute  law  of  most  States  provides  that  whenever  a 
person  is  found  dead,  and  the  cause  of  his  death  is  not 
apparent  and  can  not  be  ascertained  from  the  evidence 
given  or  from  a  superficial  examination  of  the  body,  the 
coroner  shall  order  an  examination  to  be  made.   Such  an 


320    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

examination,  to  be  safely  made,  requires  no  consent  from 
the  relatives  of  the  deceased,  for  it  is  sanctioned  by 
positive  law.  An  interesting  case  of  the  sort  is  that  of 
Young  vs.  College  of  Physicians  and  Surgeons  of  Balti- 
more City.*  In  this  ease  the  deceased,  who,  in  coupling 
cars,  sustained  a  severe  injury  to  his  right  leg,  it  being 
mashed  below  the  knee  and  almost  severed  from  the 
body,  was  taken  to  a  hospital,  where  he  died  next  day. 
The  evidence  showed  that  the  deceased  was  a  strong, 
stout  man,  and  of  good  nerve.  A  fellow-laborer  testi- 
fied that  he  had  worked  with  deceased  five  years,  during 
which  he  had  lost  no  time.  After  the  death  a  post-mor- 
tem examination  was  ordered  by  a  Dr.  G.,  a  coroner, 
and  performed  by  a  certain  Dr.  K.,  both  of  whom  were 
made  defendants  to  the  suit.  Evidence  was  offered  on 
the  part  of  the  plaintiff  for  the  purpose  of  showing  that 
the  post-mortem  was  without  the  widow's  consent ;  that 
the  body  was  wantonly  cut,  mutilated,  and  disfigured, 
and  the  feelings  of  the  relatives  of  the  deceased  were 
inhumanely  outraged. 

On  behalf  of  the  defendants  it  was  shown  that  Dr. 
G.  was  a  coroner,  and  that  Dr.  K.  was  medical  examiner, 
appointed  by  the  board  of  health;  also  that  the  post- 
mortem was  ordered  by  Dr.  G.  as  coroner.    Dr.  Gr.  tes- 


*  Young  vs.  College  of  Physicians  and  Surgeons  of  Baltimore  City 
81  Md.,  358,  32  Atl.  Rep.,  111. 


CIVIL  MALPRACTICE.  321 

tified  that  he  ordered  the  autopsy  because  he  wished  to 
know  the  cause  of  death;  that  it  had  been  reported  to 
him  that  the  man's  leg  had  been  cut  off  by  the  train 
and  that  he  had  died  within  thirty-six  hours  after  he 
was  brought  to  the  hospital,  that  he  did  not  think 
the  loss  of  the  leg  in  this  way  sufficiently  accounted  for 
the  death,  and  that  he  could  not  give  the  death  certifi- 
cate without  having  a  post-mortem.  Dr.  K.  testified 
that  he  did  not  think  in  the  majority  of  cases  persons 
in  ordinary  health,  when  the  leg  was  crushed  below  the 
knee,  would  die  from  shock.  A  certain  expert  testified 
that  if  a  healthy  man  should  have  his  leg  crushed  off,  he 
would  not  think  it  a  sufficient  cause  to  explain  the 
death,  and  in  such  case,  if  his  official  duty  required  him 
to  give  a  death  certificate,  he  would  make  every  effort 
to  obtain  a  post-mortem ;  and  that  it  was  so  unusual  for 
a  death  to  occur  from  accident  under  the  conditions 
surrounding  the  deceased  that  other  explanations  were 
more  probable.  Another  expert  testified  that  when  a 
man's  leg  is  cut  off  below  the  knee,  and  he  dies  within 
thirty-six  hours  after  the  injury,  the  accident  would 
not  be  an  entirely  satisfactory  explanation  of  the  death, 
if  the  man  was  ordinarily  healthy  and  muscular;  and, 
if  he  was  required  to  determine  definitely  the  cause  of 
death  in  such  a  case,  he  would  not  consider  that  he 
had  done  his  duty  without  having  an  autopsy.  Dr. 
K.  described  his  proceeding  in  making  the  autopsy — the 


322   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

taking  out  of  the  brain,  the  opening  of  the  body,  the  re- 
moving and  cutting  into  the  different  organs,  the  liver, 
spleen,  kidne}',  lungs,  and  heart.  He  testified  that  an  ex- 
amination of  all  the  vital  organs  was  necessary  to  deter- 
mine the  cause  of  death;  that  the  cause  of  death  was 
persistent  heart  shock;  that  deceased  had  fatty  kidneys 
and  fatty  degeneration  of  the  heart;  that  the  injury 
itself  was  not  of  such  a  nature  as  to  have  caused  per- 
sistent heart  shock,  unless  there  was  something  else 
besides  the  injury  that  helped  to  produce  it.  Expert 
evidence  was  also  given  to  the  effect  that  a  complete 
examination  could  not  be  made  without  removing  and 
opening  the  brain. 

In  the  city  where  the  present  case  arose  the  law 
provides  that  "when  any  person  shall  die  in  the  said 
city  it  shall  be  the  duty  of  the  physician  who  attended 
during  his  or  her  last  illness,  or  the  coroner,  when  the 
case  comes  under  his  notice,  to  furnish  within  forty- 
eight  hours  after  death  ...  a  certificate  setting  forth 
as  far  as  the  same  can  be  ascertained  .  .  .  the  cause, 
date,  and  place  of  death."  In  summing  up  the  conclu- 
sion of  the  court  in  this  case.  Justice  Eoberts  said :  "  The 
evidence  before  us  exhibits  the  case  of  a  public  officer, 
whose  duty  it  is  to  find  out  and  certify  the  cause  of  a 
death  which  is  brought  to  his  notice.  The  accident 
preceding  his  death,  and  disabling  him,  is  not,  in  his 
opinion,  sufficient  to  cause  the  death  of  a  healthy  per- 


CIVIL  MALPRACTICE.  323 

son.  There  must,  therefore,  as  he  thinks,  be  some  dis- 
eased condition  of  the  injured  man  which  contributed 
to  bring  about  this  result.  His  opinion  is  shared  by 
other  reputable  physicians  who  have  testified  in  the 
case.  He  could  not  honestly  and  conscientiously  give 
the  certificate  which  the  law  required  him  to  give  un- 
less he  made  proper  inquiry  into  the  case.  In  his  judg- 
ment, and  in  the  judgment  of  the  professional  witnesses, 
proper  and  sufficient  inquiry  could  not  be  made  vdthout 
an  autopsy.  So  far  as  the  evidence  in  the  case  shows, 
or  any  rational  inference  from  it,  the  coroner  did  sim- 
ply his  plain  and  positive  duty  in  ordering  the  autopsy. 
And  the  medical  examiner.  Dr.  K.,  was  equally  obliged 
by  his  duty  to  obey  the  order  of  the  coroner." 

Under  the  law  quoted  above,  in  compliance  with 
which  the  coroner  directed  the  post-mortem  examina- 
tion, no  reason  can  be  detected  why  the  attending  phy- 
sician might  not  with  equal  right  and  justification  have 
conducted  the  examination  in  the  coroner's  absence.  A 
case  involving  this  particular  question  arose  in  Denver 
not  many  years  ago.  There  a  law  was  in  force  similar 
in  effect  to  the  one  above  quoted,  which  required  the 
physician  to  give  a  certificate  of  death  before  a  burial 
permit  could  be  obtained.  In  this  case  the  deceased 
was  stricken  dead  while  riding  in  a  carriage,  and  was 
taken  to  an  undertaker's  to  be  prepared  for  burial. 
While  there,  deceased's  regular  attending  physician  was 


324    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

applied  to  by  the  undertakers  for  a  death  certificate, 
whereupon  he  performed  a  post-mortem.  Suit  was  com- 
menced against  the  undertakers  and  the  physician,  but 
the  court  held  that  they  were  not  liable.  Justice  Eich- 
mond,  in  his  opinion,  said :  "  I  think  that  the  evidence 
discloses  circumstances  which  would  warrant  any  phy- 
sician in  declining  to  issue  a  certificate  designating  the 
cause  of  death,  and  permitting  burial,  without  a  post- 
mortem examination.  It  is  true  that  the  physician 
jn&j  have  had  a  belief  as  to  the  cause  of  death,  but  the 
circumstances  under  which  death  occurred  warranted 
him  in  hesitating  to  give  the  certificate  required  by  the 
ordinance  of  the  city  of  Denver  in  this  case.  This 
being  so,  and  the  proofs  showing  conclusively  that  the 
body  was  not  mutilated,  and  that  the  autopsy  was  per- 
formed in  a  decent  and  scientific  manner,  with  due  re- 
gard to  the  sex  of  the  deceased  and  the  feelings  of  all 
parties  interested,  I  can  not  conceive  what  possible 
damages  could  be  proved  to  a  jury."  * 

The  matter  may  be  summed  up  as  follows:  An  au- 
topsy performed  with  the  consent  of  the  relative  who  is 
entitled  to  the  custody  of  the  dead  body  can  never  be 
questioned  if  properly  performed.  Such  an  operation, 
when  performed  under  direction  of  law,  is  never  subject 
to  legal  punishment,  yet  the  existence  of  the  two  cases 

*  Cook  et  al.  vs.  Walley  et  al,  1  Colo.  ApiJ.,  1G3 ;  21  Pac.  Rep.,  950. 


CIVIL  MALPRACTICE.  325; 

last  examined  should  be  a  sufficient  reason  to  convince 
the  cautious  practitioner  of  the  advisability  of  always 
securing  such  consent  when  possible.  Where  consent  is 
withheld,  and  the  physician  feels  that  a  conscientious 
performance  of  the  duty  before  him  requires  that  a 
post-mortem  examination  be  made,  he  should,  in  fur- 
therance of  his  own  safety,  turn  the  case  over  to  the 
coroner,  or  at  least  act  under  the  direction  of  that 
officer. 

Liability  for  Presence  of  Unprofessional  Attendant. 
— A  peculiar  case  of  liability  arose  a  number  of  years 
ago  in  Michigan  from  an  act  which,  although  appar- 
ently done  in  good  faith,  was  reprehensible  indeed. 

The  evidence  showed  that  a  doctor  who  was  sick  and 
fatigued  from  overwork,  and  who  was  compelled  to  go 
a  considerable  distance  over  roads  so  bad  that  a  horse 
could  not  be  ridden  or  driven  over  them,  to  attend 
a  case  of  confinement,  secured  the  reluctant  consent  of 
a  young  unmarried  man  to  attend  him  and  assist  in 
carrying  his  lantern,  umbrella,  and  other  articles  ne- 
cessary for  the  occasion,  the  night  being  dark  and 
stormy.  The  plaintiff's  house  consisted  of  one  room, 
with  a  bed,  sink,  or  alcove,  in  front  of  which  there  was 
a  curtain,  and  in  which  the  doctor  expected  to  find  the 
patient.  Upon  arriving  at  the  house  the  doctor  told 
the  husband  he  had  brought  a  friend  to  help  carry  "  his 
things."  The  husband  said  "All  right,"  and  invited  them 


326   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS.      ' 

in  and  made  no  objection  to  the  young  man.  Upon  en- 
tering they  found  the  patient  in  the  main  room,  and  it 
was  there  she  was  delivered  of  the  child.  The  young 
man  conducted  himself  in  a  respectful  manner,  and  ex- 
cepting once,  when  called  to  hold  the  patient's  hand, 
while  in  a  paroxysm  of  pain,  sat  facing  the  wall.  Both 
the  patient  and  her  husband  claimed  they  did  not  know 
the  non-professional  character  of  the  young  man,  but 
supposed  he  was  a  physician  or  a  student  practising 
under  the  attending  physician,  and  therefore  made  no 
objection  to  his  presence. 

In  the  trial  court  judgment  was  rendered  for  plain- 
tiff, from  which  defendant  took  an  appeal.  Chief-Jus- 
tice Marston,  of  the  supreme  court,  in  reviewing  the 
case,  said :  "  It  would  be  shocking  to  our  sense  of  right, 
justice,  and  propriety  to  doubt  even,  but  for  such  an 
act  the  law  would  afford  an  ample  remedy.  To  the 
plaintiff  the  occasion  was  a  most  sacred  one,  and  no  one 
had  a  right  to  intrude  unless  invited,  or  because  of 
some  real  and  pressing  necessity,  which  it  is  not  pre- 
tended existed  in  this  case.  The  plaintiff  had  a  legal 
right  to  the  privacy  of  her  apartment  at  such  a  time, 
and  the  law  secures  to  her  this  right  by  requiring  others 
to  observe  it,  and  to  abstain  from  its  violation.  The 
fact  that  at  the  time  she  consented  to  the  presence  of 
the  young  man,  supposing  him  to  be  a  physician,  does 
not  preclude  her  from  maintaining  an  action  and  re- 


CIVIL  MALPEACTICE.  32Y 

covering  substantial  damages  upon  afterward  ascertain- 
ing his  true  character.  In  obtaining  admission  at  such 
a  time  and  under  such  circumstances,  without  fully  dis- 
closing his  true  character,  both  parties  were  guilty  of 
deceit,  and  the  wrong  thus  done  entitles  the  injured 
party  to  recover  the  damages  afterward  sustained,  from 
shame  and  mortification  upon  discovering  the  true 
character  of  the  defendants."  * 

Liability  for  Wrongful  Certificate  of  Insanity. — The 
duty  which  a  physician  is  frequently  called  to  perform, 
of  passing  upon  the  mental  state  of  a  fellow  man,  who, 
by  virtue  of  his  judgment,  is  either  permitted  to  re- 
main at  large  or  is  confined  in  a  lunatic  asylum,  is  a 
most  grave  and  responsible  one.  An  error  of  judgment 
may,  on  the  one  hand,  mean  a  menace  to  the  peace  and 
even  safety  of  the  community,  or,  on  the  other  hand,  an 
unjust  and  lamentable  deprivation  of  that  most  impor- 
tant of  all  rights,  personal  liberty. 

The  purpose  of  the  present  examination  of  law  is, 
however,  to  examine  the  physician's  liability  for  an  im- 
proper exercise  of  these  functions,  and  not  the  physi- 
cian's duties  and  obligations  to  society  or  to  the  person 
whose  sanity  is  in  question,  except  in  so  far  as  they 
affect  the  real  subject  of  inquiry. 

The  method  of  determining  the  mental  condition  of 

*  DeMay  vs.  Roberts,  46  Mich.,  160. 


328    THE  LAW  IN  ITS  EELATIONS  TO  PHYSICIANS. 

one  suspected  of  being  insane  is  regulated  in  the  several 
States  by  statutes  differing  somewhat  in  the  different 
jurisdictions.  A  common  method,  however,  of  obtaining 
summary  protection  from  the  violence  or  possible  vio- 
lence of  a  lunatic  is  to  confine  him  upon  the  certificate 
of  two  reputable  physicians.  What  civil  liability  the 
physician  incurs  who  errs  in  making  this  certificate  is 
the  question  to  be  considered. 

The  first  step  to  be  taken  in  passing  upon  the  lia- 
bility of  a  physician  is  to  determine  whether  or  not  the 
certificate  is  in  itself  correct  or  false.  If  the  certificate 
is  found  to  be  correct,  this,  it  seems,  is  a  complete  bar 
to  a  civil  action  against  the  physician  for  damages,  for, 
in  the  absence  of  a  statute  imposing  a  penalty  for  a 
failure  to  comply  with  a  certain  method  or  mode  of  pro- 
cedure in  determining  the  mental  condition  of  the  party 
examined,  the  physician  incurs  no  liability  for  the  in- 
efficiency of  the  modes  which  he  pursued  in  reachiag 
and  certifying  a  correct  conclusion.*  Moreover,  it  has 
been  held  that  the  burden  of  proof  is  upon  the  plaintiff 
to  show  that  at  the  time  the  certificate  of  insanity  was 
given  he  was  in  fact  sane,  and  that  until  this  fact  is 
shown  by  a  preponderance  of  evidence  th^  physician 
signing  the  certificate  can  not  be  held  liable,  f 

It  appearing  that  the  certificate  of  insanity  is  in- 

*  Pennell  vs.  Cuminings,  75  Lie.,  163.  f  Ibid. 


CIVIL  MALPRACTICE.  329 

correct,  and  that  the  physicians  have  erred  in  their 
conclusion  and  certified  to  a  condition  which  did  not 
exist,  does  it  then  follow  that  a  civil  action  for  damages 
in  favor  of  the  person  who  has  been  wrongly  imprisoned 
will  lie  against  them?  The  answer  to  this  question  is 
practically  the  same  as  that  which  has  been  made  to 
nearly  every  question  arising  in  the  cases  of  malprac- 
tice examined  in  these  articles — viz.,  if  the  defendants 
were  possessed  of  the  ordinary  amount  of  knowledge  and 
skill  which  the  law  requires  for  the  proper  exercise  of 
their  duties,  and  if  they  used  ordinary  and  reasonable 
care  in  making  the  examination  and  exercised  their  best 
judgment  in  determining  the  party's  mental  condition, 
then  they  are  not  liable,  whether  their  conclusion  is  cor- 
rect or  not.  There  is  a  prominent  English  case  *  in 
which  this  question  was  passed  upon  and  the  law  gov- 
erning the  defendant's  liability  lucidly  and  elaborately 
expounded  by  Justice  Crompton  in  his  instruction  to 
the  jury.  The  case  is  rather  voluminous,  covering  over 
thirty  pages  in  the  volume  of  reports  where  it  is  record- 
ed, yet  a  brief  examination  of  the  facts  and  the  law 
which  was  held  to  be  applicable  will  probably  compen- 
sate in  enlightenment  for  the  time  required.  The 
plaintiif  was  a  shopkeeper  in  London,  who  lived  very 
discordantly  with  his  spouse — in  fact,  the  want  of  do- 

*  Hall  vs.  Semple,  3  F.  and  F.,  331. 


330    THE  LAW  m  ITS  RELATIONS  TO  PHYSICIANS. 

mestic  harmony  was  frequently  manifested  in  outbursts 
of  violent  temper,  in  which  the  use  of  abusive  and  ob- 
scene epithets  was  common,  and  even  physical  violence 
to  the  wife's  person  had  been  complained  of.  The  plain-  ,^ 
tiff  complained,  among  other  things,  of  the  wife's  ex- 
travagance, and  the  evidence  did  show  that  she  had 
taken  articles  from  the  shop  and  pawned  them.  The 
wife  was  accustomed  to  go  to  certain  physicians  with 
her  complaints  regarding  the  husband's  treatment, 
among  whom  was  one  of  the  physicians  who  subsequent- 
ly signed  the  certificate  of  lunacy.  Upon  one  occasion 
when  the  husband  met'  this  physician  and  his  wife  to- 
gether he  made  a  remark  which  the  physician  construed 
as  an  imputation  against  the  wife's  chastity,  but  which 
the  husband  apparently  did  not  so  intend.  The  wife  also 
claimed  that  the  husband  slept  with  a  drawn  sword  by  his 
bed  and  that  he  repeatedly  threatened  her  life.  The  de- 
fendant in  the  case,  together  with  the  physician  above 
referred  to,  perhaps  from  a  desire  to  relieve  the  wife 
from  the  hardship  of  the  husband's  persecutions,  after  a 
few  minutes'  conversation  held  with  him  at  different 
times,  signed  separate  certificates  of  his  insanity  in 
which  they  respectively  assigned  the  grounds  for  be- 
lieving him  insane,  as  follows : 

First  Certificate:  1.  Facts  indicating  insanity  ob- 
served by  myself :  He  had  a  wild  and  staring  look,  with 
restless  eyes  and  nervous,  agitated  manner.    He  repre- 


CIVIL  MALPRACTICE.  331 

sented  to  me  that  his  wife  was  ruining  himself  and 
business,  and  he  intimated  that  she  was  improperly 
associating  with  other  men;  he  is  evidently  laboring 
under  delusions,  and  he  acts  upon  these  delusions. 

2.  Other  facts  (if  any)  indicating  insanity  com- 
municated to  me  by  others. 

He  is  guilty  of  repeated  acts  of  violence;  he  con- 
stantly threatens  his  wife  and  often  assaults  her;  he 
sleeps  with  a  drawn  sword  by  his  bedside,  and  declares 
he  will  murder  any  one  who  approaches  him,  and  he 
has  often  threatened  to  stab  his  wife. 

The  defendant  who  signed  this  certificate  had  not 
seen  the  sword  at  the  time  of  certifying  the  plaintiff  in- 
sane, but  he  afterward  learned  that  the  "  dravni  sword  " 
was  a  theatrical  or  court  dress  sword. 

Second  Certificate :  1.  Facts  indicating  insanity  ob- 
served by  myself :  He  had  a  restless,  irritable,  and  ex- 
cited manner,  with  a  glaring  look,  and  expressed  much 
vindictiveness  toward  his  wife,  and  said,  "  I  must  be  a 
fool  to  mind  what  that  woman  has  said."  He  said  she 
had  her  fellows  continually  running  after  her,  and  inti- 
mated that  I  was  one  of  them. 

2.  Other  facts  (if  any)  indicating  insanity  com- 
municated to  me  by  others : 

On  a  former  occasion,  when  I  had  called  to  see 

him,  he  had  just  before  broken  the  looking  glass  to 

pieces,  also  the  marble  mantel  and  bedstead;  had  been 
23 


332    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

brandishing  knives  over  his  wife's  head,  and  using  hor- 
rid language,  sometimes  kicking  her,  tearing  her  bon- 
net and  clothes  oft",  and  all  without  provocation,  as  I 
find  from  neighbors  and  old  acquaintances  that  she  is  a 
discreet,  sober,  prudent,  and  patient  woman. 

This  certificate  was  based  upon  an  interview  had 
more  than  seven  days  previously,  and  was  accordingly, 
under  the  English  statute,  irregular,  and  of  no  ef- 
fect. The  plaintiff  was  released  when  the  irregularity 
of  the  certificate  was  discovered,  and  he  soon  there- 
after commenced  suit  against  the  defendant  for 
damages. 

The  law  which  was  held  to  govern  in  the  case  can 
probably  be  no  better  expressed  than  in  the  words  of 
Justice  Crompton  taken  from  his  charge  to  the  jury. 
Therein  the  judge  said :  "  Take  me  as  saying  to  you  in 
point  of  law  that  if  a  medical  man  assumes  under  this 
statute  the  duty  of  signing  such  a  certificate,  without 
making  and  by  reason  of  his  not  making  a  due  and 
proper  examination,  which  a  medical  man  under  such 
circumstances  ought  to  make  and  is  called  on  to  make, 
not  in  the  exercise  of  extremest  possible  care,  but  in 
the  exercise  of  ordinary  care,  so  that  he  is  guilty  of 
culpable  negligence,  and  damage  ensues,  then,  that  an 
action  will  lie,  although  there  has  been  no  spiteful  or 
improper  motive,  and  though  the  certificate  is  not  false 
to  his  knowledge. 


CIVIL  MALPRACTICE.  333 

"  The  true  ground  of  plaintiff's  complaint  is  the 
negligence  of  the  defendant,  and  the  want  of  due  care 
in  the  discharge  of  the  duty  thrown  upon  him;  and  I 
think  that  if  a  person  assumes  the  duty  of  a  medical 
man,  under  this  statute,  and  signs  a  certificate  of  in- 
sanity which  is  untrue,  without  making  the  proper  ex- 
amination and  inquiries  which  the  circumstances  of  the 
case  would  require  from  a  medical  man  using  proper 
skill  in  such  a  matter,  if  he  states  that  which  is  untrue 
and  damage  ensues  to  the  party  thereby,  he  is  liable  to 
an  action,  and  it  is  to  that  I  desire  to  call  your  particu- 
lar attention.  It  is  not  that  a  medical  man  is  bound  to 
form  a  right  judgment  so  as  to  be  liable  to  an  action 
if  he  does  not.  There  are  cases  of  insanity  which  are 
very  difficult  to  deal  with  or  to  understand.  But  what 
he  is  required  to  do  is  to  make  an  examination,  and,  if  it 
be  necessary,  to  make  such  inquiries  as  may  be  required. 
It  would  be  unjust  if  a  man  were  to  be  visited,  in  cases 
of  this  kind,  with  consequences  arising  from  mere  error 
of  judgment  or  mistake  of  fact. 

"  There  must  be,  to  make  him  liable,  negligence  in 
the  discharge  of  those  proper  duties  which  it  must  be 
taken  he  has  assumed  in  undertaking  to  sign  the  certifi- 
cate of  insanity,  and  if  you  are  satisfied  that  there  has 
been  negligence  with  reference  to  these  matters — cul- 
pable negligence,  as  I  have  described — ^then  he  is  liable. 
Now,  I  can  not  help  thinking  in  a  matter  of  this  kind. 


334    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

which  is  not  like  a  mere  preliminary  inquiry  before  a 
magistrate,  but  a  proceeding  upon  which  a  man  is  to 
be  at  once  confined  to  imprisonment  as  a  lunatic,  very 
considerable  care  is  necessary.  One  can  hardly  say  pre- 
cisely what  that  degree  of  care  may  be.  It  is  said  that 
one  man  may  be  satisfied  with  a  quicker  examination 
than  another.  We,  for  instance,  would  take  a  long  time 
before  we  should  be  able  to  form  a  judgment  in  a  mat- 
ter of  this  kind.  A  person  experienced  in  such  matters 
might  decide  more  quickly,  while  an  ordinary  medical 
practitioner  might  require  a  longer  time.  We  take  it  as 
clear,  however,  that  considerable  care  ought  to  be  used." 

The  jury  in  this  case  rendered  a  verdict  for  the 
plaintiff,  assessing  Ms  damages  at  one  hundred  and  fifty 
pounds. 

The  principles  which  were  held  to  govern  in  the 
English  case  have  been  accepted  as  the  law  by  Ameri- 
can courts  whenever  this  question  has  arisen,*  and  will 
undoubtedly  continue  to  be  so  accepted.  Therefore,  as 
long  as  the  physician  possesses  proper  knowledge  and 
science  and  conducts  the  examination  with  reasonable 
and  ordinary  care  the  result  of  his  conclusion  will  never 
despoil  his  estate,  even  though  in  the  exercise  of  his 
best  judgment  he  may  have  been  in  error. 

*  Williams  vs.  Le  Bar,  141  Pa,,  149;  Ayers  v.t.  Russell,  50  Hun,  282, 
8  K  Y.  Supp.,  338;  Hurlehy  vs.  Martine,  31  N.  Y.  S.  R.,  411,  10  N.  Y. 
Supp.,  92. 


CIVIL  MALPRACTICE.  335 

Other  cases  might  be  shown  to  illustrate,  possibly 
more  fully,  the  application  of  the  principles,  but  it  is 
thought  that  further  elaboration  will  be  superfluous. 

Liability  for  Erroneous  Conclusion  in  Examination. 
— A  peculiar  case  of  injury  resulting  from  an  erroneous 
conclusion  of  a  physician  is  shown  in  a  recent  Massa- 
chusetts case.*  In  this  case  the  plaintiff,  who  was  en- 
gaged to  be  married,  had  accidentally  injured  himself 
in  such  a  way  as  to  require  the  attention  of  a  physician 
and  the  application  of  remedies  to  his  private  parts. 
The  father  of  the  plaintiff's  fiancee,  hearing  that  the 
plaintiff  was  afflicted  with  a  venereal  disease,  took  him 
to  the  defendant,  a  physician,  for  the  purpose  of  learn- 
ing his  real  condition.  The  physician  examined  the 
plaintiff  and  reported  that  he  had  gonorrhoea,  where- 
upon the  plaintiff's  fiancee  broke  the  engagement,  and 
the  plaintiff  brought  suit  against  the  physician  for 
damages. 

It  will  be  observed  that  this  case  presents  conditions 
differing  from  all  others  heretofore  considered :  a  third 
party  employs  a  physician  to  examine  a  man,  the  physi- 
cian does  so,  and  erroneously  reports  his  condition.  Is 
the  physician  beholden  to  the  man  examined  for  dam- 
ages resulting  from  his  incorrect  diagnosis  ?  Here  there 
is  no  contractural  relation  existing  between  the  physi- 

*  Harriott  tis.  Plimpton,  166  Mass.,  585. 


336    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

cian  and  the  man  whom  he  examines,  for  he  is  in  the  em- 
ploy of  the  third  party.  We  have  seen,  however,  that  a 
physician  who  undertakes  tlie  treatment  of  a  case  gratu- 
itously is  under  equal  obligation  to  the  patient  as  though 
the  jDatient  paid  him  for  the  treatment.  So,  also,  is  the 
physician  bound  to  possess  the  same  qualification  and 
exercise  the  same  skill  in  the  treatment  of  a  patient 
where  he  is  paid  for  such  treatment  by  a  third  party.* 
Therefore  in  this  case  the  fact  that  the  physician  was 
employed  by  a  third  party  to  conduct  the  examination 
can  not  be  urged  as  a  bar  to  the  plaintiff's  right  to  re- 
cover. But  does  the  mere  fact  that  the  physician  made 
an  erroneous  report  of  the  plaintiff's  condition  entitle 
the  plaintiff  to  recover  from  him  for  damages  resulting 
therefrom?  Here,  again,  we  find  the  old  familiar  rule 
that  the  physician  is  not  liable  for  his  incorrect  report 
if  he  has  the  ordinary  skill  and  learning  of  a  physician, 
and  exercised  ordinary  diligence  and  care  in  their  appli- 
cation to  the  case ;  otherwise  he  is  liable.  Nor  does  the 
fact  that  the  purpose  of  the  examination  was  informa- 
tion and  not  medical  treatment  have  any  material 
effect. 

Examining  without  Consent. — An  English  case  aris- 
ing from  an  examination  similar  to  the  one  related  above, 
in  which  the  party  examined  submitted  only  with  reluc- 

*  Du  Bois  vs.  Decker,  130  N.  Y.,  325. 


CIVIL  MALPRACTICE.  337 

tance,  and  afterward  sued  the  physician  for  assault  in 
making  the  examination  under  coercion,  presents  quite 
a  different  question  for  consideration.  In  this  case  a 
housemaid  was  accused  by  her  mistress  of  being  in  the 
family  way;  the  girl  denied  the  accusation,  but  the  nds- 
tress  sent  her  to  her  room  and  sent  for  a  physician  to 
examine  her.  The  physician  on  arriving  went  to  the 
girl's  room  and  told  her  he  had  come  to  examine  her; 
the  girl  objected,  and  said  she  did  not  like  to  be  exam- 
ined; the  doctor  explained  that  he  was  a  professional 
man  and  told  her  how  to  prepare  herself  for  examina- 
tion ;  she  did  as  directed,  and  submitted  to  the  examina- 
tion, crying  all  the  time.  The  doctor  found  that  the 
mistress's  belief  was  mistaken  and  so  reported.  The 
servant  afterward  brought  suit  against  the  doctor  for 
assault  upon  the  theory  that  his  examination  was  only 
submitted  to  through  fear  and  duress.  Upon  the  trial 
a  verdict  was  rendered  in  favor  of  the  doctor.  From  this 
court  an  appeal  was  taken  to  the  Manchester  Assizes. 
The  two  justices  who  heard  the  question  there  disagreed 
upon  the  law.  Justice  Lopez  expressing  his  opinion 
that  the  girl  had  only  submitted  to  the  examination 
through  fear  of  evil  consequences  that  would  follow  her 
refusal,  and  that  her  submission  could  not  therefore  be 
,  considered  a  consent  to  the  examination.  Justice  Lind- 
ley,  however,  was  of  quite  a  different  opinion,  and 
thought  there  was  no  evidence  of  want  of  consent  as 


338    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

distinguished  from  a  reluctant  obedience  or  submission, 
and  that,  in  the  absence  of  all  evidence  of  coercion  as 
distinguished  from  an  order  that  she  could  have  obeyed 
or  not,  she  had  no  cause  of  action.  The  court  being 
evenly  divided,  the  judgment  was  allowed  to  stand. 
An  appeal  was  then  taken  to  the  court  of  appeals,  the 
justices  of  which  agreed  with  Justice  Lindley.  The 
appeal  was  accordingly  dismissed  and  the  judgment 
permitted  to  stand  in  favor  of  the  doctor.  This  case 
is  cited  particularly  for  the  purpose  of  pointing  out  a 
possible  danger.  The  mere  beginniag  of  a  suit  of  this 
sort,  whether  or  not  the  plaintiff  succeeds  in  obtaining  a 
judgment  against  the  doctor,  is  greatly  to  his  damage ; 
therefore  he  should  never  attempt  an  examination  of 
the  kind  unless  the  consent  of  the  party  to  be  examined 
is  fully  and  freely  given. 

Contagions  Diseases. — Questions  of  liability  of  the 
phj^sician  to  his  patients  growing  out  of  his  conduct  in 
cases  of  contagious  disease  have  arisen  in  two  separate 
and  distinct  classes. 

The  first  and  most  important,  which  has  been  here- 
tofore referred  to,*  is  that  growing  out  of  a  breach 
of  duty  on  the  part  of  the  physician  to  protect  his 
patients  in  all  reasonable  ways  from  contagious  and 
infectious  diseases.     The  liability  of  this  class  is  very 

*  See  page  72. 


CIVIL  MALPEACTICE,  339 

well  illustrated  in  the  case  of  Piper  vs.  Menifee.*  Here 
the  physician  was  told  by  the  patient's  wife  that  if  he 
attended  a  certain  case  of  small-pox  he  must  not  come 
to  see  her  husband.  The  physician  said  that  "  he  would 
not,  unless  the  (small-pox  patient)  would  be  bound  for 
his  fee."  The  next  day,  when  he  returned,  the  patient's 
wife  again  told  him  that  if  he  visited  any  small-pox 
patients  he  must  not  come  there.  He  replied  that  he 
would  not  visit  any  small-pox  patients.  Ten  days  later 
the  patient's  wife  again  pressed  him  strongly  about 
small-pox  patients,  again  repeating  the  interdiction. 
In  answer  he  neither  admitted  nor  denied  that  he  vis- 
ited such  patients,  but  said  that  if  he  visited  them  he 
would  change  his  clothes,  and  there  would  be  no  dan- 
ger. After  the  physician  had  been  attending  the  pa- 
tient for  about  three  weeks  for  typhoid  fever,  and 
when  he  was  getting  better  and  began  to  recover  from 
the  fever,  he  broke  out  with  small-pox,  and  some  time 
after  the  patient's  son  broke  out  with  the  same  disease. 
The  patient  also  ofEered  evidence- to  show  that  the  phy- 
sician was  attending  small-pox  patients  while  attending 
him.  The  court  held  that  this  statement  of  facts  con- 
stituted a  good  cause  of  action  against  the  defendant. 
Justice  Marshall,  who  rendered  the  opinion,  said: 
"  Suppose  a  physician,  knowing  that  he  has  an  infec- 

*  Piper  vs.  Menifee,  12  B,  Mon.  (Ky.),  467,  54  Am.  Dec.,  547. 


340    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS.      ' 

tious  disease,  continues  to  visit  his  patients  without 
apprising  them  of  the  fact,  and  without  proper  pre- 
cautions on  liis  own  part,  and  thus  communicates  the 
disease  to  one  of  them.  Clearly  the  physician  thus 
acting  would  be  guilty  of  a  breach  of  duty  and  of  his 
implied  undertaking  to  the  patient,  which,  whether  it 
be  regarded  in  the  light  of  carelessness  or  negligence 
or  fraud,  would  render  him  liable  for  consequent  dam- 
ages, including  as  well  the  suffering  and  danger  and 
loss  of  time  as  the  expense  necessarily  occasioned  by 
the  second  disease  thus  produced  by  his  own  wrongful 
act. 

"  The  actual  case,  as  presented  by  the  evidence 
which  was  offered,  is  even  stronger  for  the  (patient) 
than  that  which  has  been  hypothetically  stated,  inas- 
much as  it  may  be  inferred  that  the  continuance  of  the 
plaintift''s  employment  in  the  first  disease  was  induced 
by  his  promise  not  to  visit  small-pox  patients  while  he 
was  visiting  the  (patient)." 

From  the  very  nature  of  the  physician's  professional 
duties  it  is  necessary  for  him  to  pass  from  patients  suf- 
fering from  infectious  or  contagious  diseases  of  the 
more  ordinary  and  less  virulent  type  to  those  not  so 
affected.  Modern  science  has,  however,  shown  that  an- 
tiseptic precautions  will  greatly  decrease  the  danger  of 
contagion,  and  if  the  physician  adopts  those  measures 


CIVIL  MALPRACTICE.  341 

best  calculated  to  insure  the  safety  of  those  with  whom 
he  comes  in  contact  he  will  be  considered  as  exercising 
due  skill  and  care  as  judged  by  the  advanced  stage  of 
the  medical  science. 

The  second  class  of  cases  in  which  the  physician's 
conduct  has  been  questioned  consists  of  those  in  which 
he  has  incorrectly  reported  a  patient  to  the  board  of 
health  as  being  afflicted  with  a  contagious  disease.  In 
this  class  of  cases  it  seems  that  the  question  of  liability 
depends  upon  the  good  faith  of  the  physician  in  making 
the  report  rather  than  upon  his  skill  and  care.  In  pass- 
ing upon  a  case  of  this  sort  "Justice  Sedgwick,  of  the  iSTew 
York  supreme  court,  said :  "  Nor,  as  I  view  the  case, 
can  it  be  maintained  that  the  defendants'  (the  physi- 
cians') omission,  if  there  were  such  an  omission,  to  use 
ordinary  skill  as  physicians,  in  coming  to  their  opinions, 
was  actionable  under  the  facts  in  this  case.  There  was 
no  improper  or  hurtful  treatment  or  medication  in 
pursuance  of  the  opinion.  These  opinions  led  them  to 
make  an  honest  report  to  the  health  board.  The  stat- 
utes had  made  it  their  duty  to  report  cases  of  con- 
tagious disease.  The  performance  of  this  duty  was  not 
part  of  the  functions  of  a  physician  in  his  relation  to 
a  patient,  but  rather  to  the  public.  My  opinion  is  that 
in  order  to  give  the  public  the  protection  due  to  it,  ac- 
cording to  the  intention  of  the  statute,  any  physician 
that  possesses  in  fact  an  opinion  that  a  patient  has  a 


342   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

contagious  disease  is  bound  to  report  the  case,  whether 
he  has  or  not  used  ordinary  professional  skill  and  knowl- 
edge. A  physician  of  skill  in  everything  but  cases  of 
small-pox,  which  happily  are  not  numerous,  may,  unex- 
pectedly to  himself,  be  called  to  a  case  which  presents 
to  him  the  appearance  of  small-pox.  It  may  be  said 
that  he  can  call  in  counsel.  It  can  not,  however,  be 
said  that  private  counsel  should  be  called  in  rather  than 
such  as  the  law  has  appointed.  Certainly,  if  he  really 
thinks  the  case  to  be  one  of  small-pox,  it  is  his  duty  to 
communicate  his  opinion  to  the  public  authorities,  who 
furnish  skilled  physicians  peculiarly  competent  to  pass 
upon  the  case.  They  are  the  experts  that  the  law  points 
out  for  the  physician.  The  attendance  of  those  experts 
upon  a  patient  can  cause  no  injury,  and  therefore  the 
responsibility  rests  solely  upon  the  public  officers.^^  * 

It  is  evident  that  the  logic  of  this  opinion  will  not 
apply  in  cases  where  the  act  of  the  attending  physician 
in  reporting  cases  of  contagious  disease  to  the  board  of 
health  is  not  a  mere  ministerial  one,  and  where  no  regu- 
lar physician  is  provided  by  law  to  make  the  examina- 
tion by  virtue  of  which  the  patient  is  quarantined.  It 
is  therefore  believed  that  where  a  patient  is  quarantined 
by  virtue  of  the  examination  of  the  attending  physician 
he  will  be  held  to  exercise  ordinary  skill  and  diligence 
in  conducting  that  examination. 

*  Brown  vs.  Purdy,  8  N.  Y.  S.  R.,  143,  54  N.  Y.  Super.  Ct.,  109, 


CIVIL  MALPRACTICE.  343 

A  case  of  liability  arising  from  the  conduct  of  a 
doctor  in  reference  to  a  contagious  disease,  although  not 
coming  under  either  of  the  foregoing  classes,  or,  in  fact, 
growing  out  of  a  professional  relation  between  the  par- 
ties to  the  suit,  is  reported  in  the  New  Yorh  Supreme 
Court  Reports.  In  this  case  a  phj^sician  directed  the 
plaintiff  to  whitewash  a  house  in  which  there  had  been 
small-pox  patients.  The  plaintiff  objected  to  going  into 
the  house,  but  was  informed  by  the  doctor  that  the  house 
had  been  thoroughly  disinfected,  and  that  no  danger 
of  contagion  existed.  Eelying  upon  the  doctor's  state- 
ment, the  plaintiff  performed  the  services  and  in  due 
time  broke  out  with  the  disease.  This  case  came  before 
the  court  upon  a  question  of  law.  It  was  decided  that 
the  facts  as  stated  showed  a  cause  of  action,  and  that  it 
was  for  the  jury  to  determine  from  the  evidence  whether 
the  doctor  had  acted  toward  the  plaintiff  with  due  care 
and  prudence,  and  whether  the  plaintiff  had  acted  rash- 
ly and  inexcusably  in  entering  the  house  under  the  cir- 
cumstances.* 

Negligence  in  Writing  Prescriptions. — The  physi- 
cian may  become  civilly  liable  in  damages  as  well  for 
injury  resulting  from  a  negligently  or  ignorantly  writ- 
ten prescription  as  from  any  other  form  of  malpractice. 
Kor  does  the  negligence  of  the  druggist  who  compound- 

*  Span  vs.  Ely,  8  Hun,  255. 


344:    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ed  the  prescription  without  discovering  the  error  and 
directing  the  doctor's  attention  to  it  relieve  the  physi- 
cian from  his  liability.* 

Deceit  and  Misrepresentation. — It  is  a  general  rule 
of  law  that  a  statement  which  amounts  to  an  expression 
of  opinion,  even  though  erroneous,  does  not  furnish 
ground  for  action.  Deception,  to  be  actionable,  must 
relate  to  existing  or  past  facts,  and  not  to  representa- 
tions made  as  to  facts  to  transpire  in  the  future.  The 
reason  most  commonly  given  for  this  condition  and  the 
one  upon  which  the  law  is  probably  founded  is  that  one 
to  whom  an  opinion  is  expressed  as  to  a  future  event 
has  no  right  to  rely  upon  it.f  And  so  a  purchaser  may 
not  rely  upon  the  representation  of  a  vendor  regarding 
the  quantity  or  value  of  an  article  which  is  open  to  his 
inspection,  but  must  depend  upon  his  own  judgment. J 
And  also  where  statements  were  made  by  a  real-estate 
agent  to  a  widow  to  induce  her  to  exchange  her  home- 
stead for  other  property — that  she  was  making  a  good 
trade  and  bettering  her  condition,  and  that  she  could 
sell  enough  of  the  other  property  to  pay  for  a  house — 
such  statements  are  considered  mere  expressions  of  opin- 
ion and  not  misrepresentations ;  for  while  the  person  to 
whom  such  representations  are  made  may  rely  upon 

*  Murdoch  vit.  Walker,  43  111.  App!,  690. 
f  Homer  vs.  Perkins,  1 24  Mass.,  431. 
J  Evans  vs.  Boiling,  5  Ala.,  550. 


CIVIL  MALPRACTICE.  345 

them,  he  is  supposed  to  be  equally  able  from  his  own 
opinion  to  come  to  as  correct  a  conclusion  as  the  other 
party,  and  therefore  can  not  claim  to  be  misled  by  such 
opinion.* 

As  the  law  is  always,  or  nearly  always,  based  upon 
reason,  it  is  natural  to  expect  to  find  an  exception  to 
this  general  law  in  cases  where  the  reasons  for  its  exist- 
ence do  not  apply.  Such  an  exception  does  exist  in 
those  cases  where  an  opinion  is  expressed  with  intention 
to  deceive,  and  where  the  other  party  has  a  right  to  rely 
upon  the  opinion ;  and  also  in  cases  where  the  facts  are 
not  equally  known  to  both  parties,  but  where  the  opin- 
ion is  expressed  by  the  one  party  and  is  founded  upon 
special  skill  or  knowledge  by  which  he  alone  is  able  to 
form  an  opinion,  f 

The  expression  of  an  opinion  by  a  physician  and  sur- 
geon relative  to  the  subject  of  his  profession  comes 
peculiarly  within  the  exception,  and  we  therefore  shall 
expect  to  see  him  held  responsible  for  any  deceit  or 
misrepresentation.  The  case  of  Hedin  vs.  Minneapo- 
lis Medical  and  Surgical  Institute  J  is  one  of  some  im- 
portance in  which  this  question  was  adjudicated.  In 
this  case  the  plaintiff,  an  illiterate  man,  who  had  been 


*  Brady  vs.  Cole,  164  111.,  116. 
f  Conlan  vs.  Roemer,  52  N.  J.  L.,  K3. 

X  Hedin  vs.  Minneapolis  Medical  and  Surgical  Institute,  62  Minn , 
146,  64  N.  W.  Rep.,  158,  35  L.  R.  A.,  417. 


346    THE  LAW  IN  ITS  EELATIONS  TO  PHYSICIANS.      ' 

badly  injured  in  an  accident,  was  suffering  from  a  frac- 
ture at  the  base  of  the  skull  and  was  physically  a 
wreck.  He  consulted  the  defendant.  After  being  exam- 
ined, he  was  positively  assured  by  the  surgeon  that  he 
could  be  cured  by  receiving  treatment  at  that  institute, 
but  that  he  must  pay  a  fee  of  five  hundred  dollars.  By 
virtue  of  these  representations  the  plaintiff  paid  the 
money  demanded  and  submitted  to  the  treatment,  but 
upon  failing  to  receive  benefit  therefrom,  brought  suit 
to  recover  the  money  paid  to  defendant,  basing  his 
action  upon  the  deceitful  misrepresentation  of  the  de- 
fendant's surgeon.  The  Jury  rendered  a  verdict  of  five 
hundred  dollars  in  favor  of  plaintiff,  from  which  de- 
fendant appealed,  but  the  supreme  court  affirmed  the 
judgment.  Justice  Collins,  who  gave  the  opinion  of  the 
court,  expressed  himself  upon  the  law  applicable  to  the 
case  as  follows :  "  Considering  the  circumstances  and 
relations  of  the  parties,  there  was  something  more  in 
the  defendant's  statements  than  the  mere  expression  of 
his  opinion  upon  a  matter  of  conjecture  and  uncer- 
tainty. It  amounted  to  a  representation  that  the  plain- 
tiff's physical  condition  was  such  as  to  insure  a  com- 
plete recovery.  The  doctor,  especially  trained  in  the 
art  of  healing,  having  superior  learning  and  knowledge, 
assured  plaintiff'  that  he  could  be  restored  to  health. 
That  the  plaintiff  believed  him  is  easily  imagined,  for 
a  much  stronsjer  and  more  learned  man  would  have 


CIVIL  MALPRACTICE.  34Y 

readily  believed  the  same  thing.  The  doctor  with  his 
skill  and  ability  should  be  able  to  approximate  to  the 
truth  when  giving  his  opinion  as  to  what  can  be  done 
with  injuries  of  one  year's  standing,  and  he  should  always 
be  able  to  speak  with  certainty  before  he  undertakes  to 
assert  positively  that  a  cure  can  be  effected.  If  he  can 
not  speak  with  certainty,  let  him  express  a  doubt.  If 
he  speaks  without  any  knowledge  of  the  truth  or  falsity 
of  a  statement  that  he  can  cure,  and  does  not  believe 
the  statement  true,  or  if  he  has  no  knowledge  of  the 
truth  or  falsity  of  such  a  statement,  but  represents 
it  as  true  of  his  own  knowledge,  it  is  to  be  inferred 
that  he  intends  to  deceive.  The  deception  being  de- 
signed in  either  case,  and  injury  having  followed 
from  reliance  upon  the  statements,  an  action  for  deceit 
will  lie." 

Contributory  Negligence. — In  Chapter  III  of  this 
work  it  has  been  observed  that  it  is  the  duty  of  the 
patient  to  follow  all  reasonable  directions  and  instruc- 
tions given  him  by  his  physician,  and  that  while  a 
breach  of  this  duty,  resulting  as  it  does  principally 
in  the  injury  of  the  patient,  will  not  give  rise  to  an  ac- 
tion in  favor  of  the  physician,  yet  it  is  a  fact  which  the 
physician  may  plead  as  a  defense  to  an  action  com- 
menced against  him  by  the  patient  for  negligent  or 
unskillful  treatment  in  the  particular  case.  This  fail- 
ure of  the  patient  to  follow  the  instructions  of  the  physi- 
23 


348    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

eian  and  conduct  himself  in  a  manner  suggested  by 
ordinary  caution  and  prudence  is  knoAvn  in  the  law  as 
contributory  negligence. 

The  instructions  of  the  physician,  in  order  to  be 
binding  upon  the  patient,  must  be  such  reasonable  and 
proper  instructions  as  a  physician  of  ordinary  skill 
would  give;  if,  however,  they  impose  unnecessary  bur- 
dens or  suffering  upon  him,  he  will  be  legally  justified 
in  disregarding  them.  In  the  case  of  McCandless  vs. 
MeWha,*  the  patient  was  suffering  from  a  comminuted, 
oblique  fracture  of  both  tibia  and  fibula.  The  defend- 
ant attempted  to  effect  extension  and  counter-extension 
by  binding  splints  on  the  fore  and  back  part  of  the  leg, 
reaching  from  the  ankle  to  the  knee.  These  splints 
were  bound  on  in  such  a  way  as  to  impede  circulation, 
and  to  irritate  the  parts  and  cause  them  to  be  consid- 
erably swollen,  thereby  causing  much  pain.  The  pa- 
tient, unable  to  stand  the  pain,  loosened  the  bandages. 
This  act,  the  defendant  claimed,  contributed  to  the 
injury,  and  should  therefore  be  a  defense  to  the  action, 
but  the  court  thought  not.  Justice  Lewis  said :  "  A 
patient  is  bound  to  submit  to  such  treatment  as  his  sur- 
geon prescribes,  provided  the  treatment  be  such  as  a 
surgeon  of  ordinary  skill  would  adopt  or  sanction.  But 
if  it  be  painful,  injurious,  and  unskillful,  he  is  not 

*  McCandless  vs.  McWha,  22  Pa.  St.,  261. 


CIVIL  MALPRACTICE.  349 

bound  to  peril  his  health,  and  perhaps  his  life,  by  sub- 
mission to  it.  It  follows  that  before  the  surgeon  can 
shift  the  responsibility  from  himself  to  the  patient,  on 
the  ground  that  the  latter  did  not  submit  to  the 
course  recommended,  it  must  be  shown  that  the 
prescriptions  were  proper,  and  adapted  to  the  end  in 
view." 

If,  however,  the  instructions  given  the  patient  were 
proper  and  adapted  to  the  end  in  view,  although  the 
physician's  treatment  of  the  case  may  have  been  im- 
proper, and  the  patient  fails  to  follow  the  instructions 
and  injury  ensues,  what  effect  will  such  failure  have 
upon  his  right  to  recover  from  the  physician  for  the 
injury  sustained  ?  A  casual  examination  of  the  cases  in 
which  this  question  is  treated  leads  one  to  believe  that 
there  is  considerable  conflict  of  authority,  but  a  more 
critical  scrutiny  shows  that  the  conflict  is  only  appar- 
ent, and  that  it  results  from  a  confusion  of  the  two 
classes  into  which  acts  of  this  sort  as  a  defense  are  di- 
vided. 

The  true  doctrine,  in  general  terms,  seems  to  be 
that  the  physician  having  been  guilty  of  negligence  in 
the  treatment  of  the  case,  the  contributory  negligence 
of  the  patient,  when  contemporaneous  with  the  physi- 
cian's negligence,  or  when  uniting  or  cooperating  with 
it  in  such  a  way  as  to  conduce  to  the  deleterious  result 
of  the  physician's  treatment,  may  be  pleaded  as  a  com- 


350    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

plete  defense  to  an  action  against  such  physician.  But 
if  the  contributory  negligence  is  subsequent  in  point  of 
time  to  the  negligence  of  the  physician,  or  if  the  effect 
of  the  physician's  negligence  and  that  of  the  patient 
can  be  separated  in  such  a  way  as  to  show  distinctively 
the  deleterious  result  of  each,  then  the  patient's  negli- 
gence will  be  received  as  a  defense  only  in  the  way  of 
mitigation  of  damages.*  The  case  of  Du  Bois  vs. 
Decker  f  affords  an  excellent  illustration  of  the  appli- 
cation of  the  second  rule.  The  patient  had  through  the 
improper  treatment  of  the  physician  been  subjected  to 
two  amputations.  The  physician  set  up  as  a  defense  that 
after  the  second  amputation  the  patient  failed  to  keep 
the  limb  in  the  position  in  which  it  was  placed  and  in 
which  he  was  instructed  to  keep  it,  and  thereby  pro- 
duced bleeding  which  to  some  extent  impeded  the  heal- 
ing; also  that  he  refused  to  take  the  doctor's  prescrip- 
tions about  this  time;  and,  further,  that  he  left  the 
hospital  before  he  should  have  done  so,  which  may  also 
have  aggravated  the  injury.  This,  the  court  held,  was 
all  proper  evidence  to  be  considered  by  the  jury  for  the 
purpose  of  mitigating  damages,  but  that  it  would  not 
relieve  the  physician  from  the  consequences  of  previous 
neglect  or  unskillful  treatment. 

*  Lawson  vx.  Conaway,  37  W.  Va.,  159.  Jones  vs.  Angell,  95  Ind., 
S76.  Becker  vs.  Janinski,  27  Abb.  N.  C,  45.  Scudder  vs.  Crossan, 
43  Ind.,  343.     Geiselman  vs.  Scott,  25  Ohio  St.,  86. 

t  DuBois  vs.  Decker,  130  N.  Y.,  325. 


CIVIL  MALPEACTICE.  351 

In  the  case  of  Sanderson  vs.  Holland,*  the  patient, 
a  little  girl  of  six  years,  had  fractured  her  arm  at  a 
point  about  two  inches  above  the  elbow.  The  physician, 
in  reducing  the  fracture,  first  extended  the  arm  its  full 
length  in  a  straight  line,  and  in  that  position  bandaged 
it  from  fingers  to  shoulder.  He  then  put  on  splints 
from  the  shoulder  to  the  elbow,  and  then  forced  the  arm 
into  a  right  angle  so  as  to  swing  it,  thereby  pressing  the 
elbow  ends  of  the  splints  into  the  forearm,  causing  the 
child  to  scream  with  pain,  and  stopping  the  circula- 
tion of  the  lower  arm,  which  caused  gangrene.  Perma- 
nent injuries  ensued  for  which  suit  was  brought.  Evi- 
dence was  shown  by  the  defendant  of  careless  treatment 
of  the  patient  by  her  parents  and  others  which  contrib- 
uted to  the  injury.  In  regard  to  the  effect  of  this  evi- 
dence Justice  Gill  said :  "  If  the  defendant  carelessly 
and  unskillfully  set,  bandaged,  and  dressed  the  plain- 
tiff's arm,  and  she  was  injured  thereby,  then  the  action 
will  not  be  defeated  by  showing  that  subsequently  her 
parents  added  to  the  extent  of  such  injuries  by  their 
carelessness  and  negligence  in  nursing.  This  showing 
would  not  defeat  plaintiff's  case,  but  merely  go  to  miti- 
gate the  damages  as  against  the  defendant." 

On  the  other  hand,  the  case  of  Young  vs.  Mason  f 
illustrates  the  rule  that  where  the  negligence  of  the 

*  Sanderson  vs.  nolland,  39  Mo.  App.,  233. 

f  Young  vs.  Mason,  8  Ind.  App.,  264,  35  N.  E.  Rep.,  521. 


352    THE  LAW  [N  ITS  RELATIONS  TO  PHYSICIANS. 

patient  is  either  contemporaneous  with  that  of  the  phy- 
sician or  contributes  to  the  deleterious  results  of  the 
original  unskillful  treatment  of  the  physician  in  such  a 
way  that  the  result  of  the  doctor's  negligence  and  that 
of  the  patient  can  not  be  distinguished,  then  the 
contributory  negligence  is  a  complete  defense  to  the 
action. 

The  patient  had  fractured  the  radius  of  her  left 
iEorearm  near  the  wrist,  dislocated  laterally  both  bones 
at  the  elbow,  and  fractured  the  inner  condyle  of  the 
humerus. 

The  evidence  showed  that  with  one  exception  the 
physician  dressed  and  treated  the  patient's  injuries 
in  a  manner  approved  and  followed  by  the  most  skilled 
surgeons  in  that  vicinity,  and  which  is  approved  by  the 
standard  authors  and  text  writers  upon  the  subject  of 
surgery.  The  exception  is  that  the  evidence  did  not 
conclusively  show  that  he  used  proper  skill  and  care 
in  reducing  the  fracture  near  the  wrist  joint.  The  evi- 
dence also  showed  that  the  patient,  contrary  to  instruc- 
tions, removed  her  arm  from  the  sling  numerous  times, 
placing  it  in  different  positions  while  out  of  the  sling, 
and  that  the  effect  of  removing  the  arm  from  the  sling 
was  to  aggravate  the  inflammation  and  swelling,  which 
had  a  tendency  to  produce  the  stiff  and  useless  condi- 
tion of  the  arm  for  which  suit  was  brought.  The  evi- 
dence also  showed  that  the  proper  treatment  of  the  arm 


CIVIL  MALPRACTICE.  353 

for  the  stiffness  of  the  elbow,  wrist,  and  finger  joints 
was  passive  motion;  that  the  physician  endeavored  to 
apply  this  treatment  at  the  proper  time  but  was  pre- 
vented from  so  doing  by  the  patient. 

The  court  was  of  the  opinion  that  the  negligence 
of  the  physician  alone  was  not  the  cause  of  the  injuries 
sustained,  but  that  that  of  the  patient  entered  into  the 
general  result  in  such  a  way  as  to  make  the  result  of 
each  indistinguishable;  therefore  the  negligence  of  the 
patient  was  a  complete  defense  to  the  action  against  the 
phj'-sician.  Justice  Davis,  in  rendering  the  opinion  of 
the  court,  said :  "  For  instance,  suppose  a  man  fractures 
the  bones  in  his  leg  below  the  knee,  and  calls  a  sur- 
geon to  treat  the  injuries,  and  the  surgeon  negligently 
fails  to  reduce  one  of  the  fractures,  but  in  all  other 
respects  gives  proper  treatment,  and  the  patient,  in  dis- 
obedience to  the  directions  of  the  surgeon,  negligently 
removes  the  bandages  used  as  a  part  of  the  proper 
treatment  by  the  surgeon,  or  is  otherwise  guilty  of  con- 
tributory negligence,  and  such  combined  negligence  of 
the  surgeon  and  patient  unite  in  producing  a  shortness 
and  stiffness  of  the  leg,  for  which  injuries  an  action 
is  brought  against  the  surgeon — can  the  patient  recover  ? 
The  patient  is  certainly  not  responsible  in  such  a  case 
for  the  original  negligence  of  the  surgeon  in  failing  to 
properly  reduce  the  fracture,  but  this  negligence  of  the 
surgeon  unites  with  the  subsequent  contributory  negli; 


354    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

gence  of  the  patient  in  causing  the  shortness  and  stiff- 
ness of  the  leg."  This  being  the  case,  a  cause  of  action 
does  not  exist  against  the  physician. 

An  instructive  case  comes  to  us  from  a  Massachu- 
setts report  of  some  years  ago.  The  plaintiff  com- 
plained that  through  the  negligence  of  the  physician 
he  became  afflicted  with  a  bedsore,  from  which  by  rea- 
son of  negligent  treatment  he  suffered  damages.  The 
evidence  tended  to  show  that  the  injury  complained  of 
was  not  a  bedsore,  but  was  caused  by  the  patient's  at- 
tendants carelessly  dropping  him  on  the  bed  rail.  There 
was  evidence,  however,  which  showed  that  the  physician 
did  not  give  the  injury  proper  treatment  and  that  it 
was  thereby  greatly  aggravated.  The  instruction  given 
to  the  jury  by  the  court  learnedly  and  clearly  presents 
all  of  the  law  of  contributory  negligence  relative  to  the 
case,  and  is  therefore  quoted  at  length :  "  The  burden 
of  proof  is  on  the  plaintiff  to  show  that  all  the  injury 
for  which  he  seeks  damages  proceeds  solely  from  the 
want  of  ordinary  skill  and  care  on  the  part  of  the  de- 
fendant. If  it  be  impossible  to  separate  the  injury  oc- 
casioned by  the  neglect  of  the  plaintiff  himself  from 
that  occasioned  from  the  neglect  of  the  defendant,  the 
plaintiff  can  not  recover.  If,  however,  they  can  be  sepa- 
rated, for  such  injury  as  the  plaintiff  may  show  thus 
proceeded  from  the  want  of  ordinary  skill  or  ordinary 
care  of  the  defendant  he  may  recover.    In  the  present 


CIVIL   MALPRACTICE.  355 

case  the  plaintifT  claims  damages  of  the  defendant  for 
want  of  ordinary  care  and  ordinary  skill  in  the  treat- 
ment of  him  by  the  defendant,  by  which,  as  he  says, 
first  a  bedsore  was  caused,  and  second,  after  the  bedsore 
was  caused,  it  was  improperly  treated  and  neglected. 
If  the  plaintiflE  should  fail  to  satisfy  you  that  the  sore 
was  caused  by  neglect  of  the  defendant,  for  this  damage 
he  could  not,  of  course,  recover,  but  he  might  still  recover 
for  the  injury  occasioned  to  him  solely  by  the  subse- 
quent neglect  of  the  defendant  in  not  taking  proper  care 
of  it  (should  he  prove  such  neglect),  even  if  the  sore 
was  occasioned  by  the  plaintiff's  own  carelessness.  If, 
however,  in  the  case  last  supposed,  the  injury  has 
resulted  to  the  plaintiff  not  solely  from  neglect  in  the 
subsequent  treatment  of  it  by  the  defendant,  but  also 
from  his  own  subsequent  neglect,  and  the  jury  are  not 
satisfied  but  that  both  causes  have  combined  to  produce 
the  subsequent  injury,  the  plaintiff  can  not  recover  for 
it.  While,  on  the  one  hand,  the  defendant  would  not 
be  released  from  his  duty  to  exercise  ordinary  care  and 
ordinary  skill  in  his  subsequent  treatment  of  a  disease 
because  at  a  previous  stage  of  it  the  plaintiff  had  him- 
self been  negligent,  and  had  thus  contributed  to  the 
condition  in  which  he  was,  on  the  other  hand  it  would 
be  for  the  plaintiff  to  show,  if  he  seeks  damages  for 
want  of  ordinary  care  and  ordinary  skill  on  the  part  of 
the  defendant  in  his  subsequent  treatment,  that  it  pro- 


356    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ceeded  solely  from  this,  and  not  from  any  subsequent 
neglect  of  his  own.'^  * 

The  defense  of  contributory  negligence  is  one  which 
may  be  made  in  many  cases ;  it  is  therefore  thought  that 
the  importance  of  the  subject  will  justify  the  particu- 
larity with  which  it  has  been  treated. 

Survival  of  Action. — At  common  law  a  cause  of  ac- 
tion arising  from  an  injury  to  the  person  caused  by  want 
of  skill  or  negligence  of  a  physician  and  surgeon  did  not 
survive  the  death  of  either  physician  or  patient,  f  The 
law  in  this  respect  has,  however,  been  greatly  altered 
in  many  of  the  States  by  statutes  expressly  providing 
for  its  survival,  so  that  in  case  of  death  of  either  party 
suit  may  now  be  brought,  or,  if  previously  commenced, 
may  be  continued  by  or  against  the  personal  representa- 
tive of  the  deceased. 

To  whom  Liable. — To  whom  the  physician  becomes 
liable  by  reason  of  negligence  or  malpractice  is  often  a 
question  that  would  confuse  one  not  understanding  the 
fiction  of  the  common  law  upon  which  these  rights  are 
often  based. 

At  common  law  the  family  formed  a  legal  unit, 
which  was  represented  by  the  husband  and  father.  An 
injury  to  his  person  was  one  which  created  a  cause  of 


*  Hibbard  vs.  Thompson,  109  Mass.,  286. 
■f-  Wolf  vs.  Wall,  40  Ohio  St.,  111. 


CIVIL  MALPRACTICE.  357 

action  in  his  favor  alone  and  upon  which  he  alone  must 
sue ;  but  should  the  injury  be  done  to  the  wife,  a  double 
cause  of  action  arose — one  in  favor  of  the  husband  for 
damages  for  the  loss  of  her  services  and  society  during 
the  time  she  was  suffering  from  the  injury,  also  for 
the  cost  of  nursing  and  caring  for  her  while  ill.  The 
other  cause  of  action  arose  in  favor  of  the  wife  for  the 
injury  inflicted  upon  her,  in  which  the  measure  of  dam- 
ages was  an  amount  adequate  to  compensate  her  for 
the  inconvenience  and  suffering  caused  thereby.  In 
this  cause  suit  must  be  brought  by  the  husband  and  wife 
jointly.  In  case  of  injury  to  the  child,  the  rule  is  near- 
ly the  same.  A  cause  of  action  arises  in  favor  of  the 
father  for  the  loss  of  the  child's  services  and  for  the 
cost  of  curing  and  caring  for  him.  A  separate  cause 
of  action  arises  in  favor  of  the  child  for  the  personal 
injury  which  he  has  sustained  and  for  the  suffering  to 
which  he  has  been  thereby  subjected,  and  for  any  per- 
manent injury  reaching  beyond  his  minority;  upon  this 
cause  of  action  suit  is  brought  for  the  infant  by  his 
guardian,  or  by  a  third  person,  who  is  styled  the  next 
friend  or  prochein  ami.  The  father,  if  living,  usually 
does,  and  by  natural  right  may,  appear  for  the  infant 
as  next  friend. 

In  cases  where  the  cause  of  action  is  made  to  survive 
tbe  injured  party  by  statute,  the  statute  usually  pro- 
vides by  whom  the  suit  shall  be  brought  and  prosecuted. 


358    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

and  in  all  such  cases  its  provisions  must  be  strictly  fol- 
lowed. 

Liability  for  Act  of  Partner. — As  a  general  rule  of 
law,  each  partner  in  a  copartnership  is  bound  by  the  acts 
of  his  copartners  performed  in  the  scope  of  the  part- 
nership business. 

This  law  has  been  held  to  apply  where  a  patient 
employed  a  firm  of  physicians  to  treat  a  broken  leg. 
Both  members  of  the  firm  attended  him.  The  treatment 
of  the  one  was  skillful  and  proper,  but  the  treatment 
of  the  other  was  negligent  and  unskillful.  Suit  was 
commenced  against  both,  and  the  court  held  them  to  be 
equally  amenable.* 

Effect  of  Judgment  against  Patient  for  Fee  upon 
Suit  by  him  for  Malpractice. — Although  the  effect  of  a 
judgment  obtained  by  a  physician  against  a  patient  for 
his  fee  in  a  given  case  upon  a  cause  of  action  for  mal- 
practice in  that  particular  case  has  already  been  treat- 
ed, f  it  is  thought  advisable  to  refer  to  the  subject  again 
at  this  point. 

Should  a  physician  begin  a  suit,  say  before  a  justice 
of  the  peace,  to  recover  the  value  of  his  services  in  a 
given  case,  and  the  defendant  appears  and  defends  upon 
the  grounds  that  the  services  were  valueless  and  that 
he  sustained  injury  from  the  physician's  negligence, 

*  Whittaker  v.i.  Collins,  34  Minn.,  299. 
f  See  page  220. 


CIVIL  MALPRACTICE.  359 

etc.,  and  a  judgment  is  rendered  in  favor  of  the  physi- 
cian, this  judgment,  if  unrepealed,  stands  as  a  complete 
adjudication  of  the  patient's  cause  of  action  for  dam- 
ages, and  will  prevent  him  from  subsequently  bringing 
suit  against  the  physician  in  another  or  higher  court  to 
recover  damages.  But  supposing  the  patient  does  not 
appear,  but  suffers  judgment  to  be  entered  against  him 
by  default,  or  supposing  he  appears  and  defends  upon 
other  grounds  than  those  of  the  physician's  negligence 
or  incompetence;  what,  then,  is  the  effect  of  a  judg- 
ment for  the  physician  ?  This  is  a  question  upon  which 
the  courts  of  different  States  differ.  Those  of  Indiana, 
Iowa,  Ohio,  and  Wisconsin*  hold  that  such  a  judgment 
will  not  prevent  the  patient  from  afterward  suing  the 
physician  to  recover  damages  sustained  by  reason  of 
his  negligence  or  incompetency.  Upon  the  other  hand, 
the  courts  of  New  York,  New  Jersey,  f  and  West  Vir- 
ginia I  hold  that  a  judgment  in  behalf  of  the  physician 


*  Goble  vs.  Dillon,  86  Ind.,  327;  Sykes  vs  Bonner,  1  Cin.  Rep.,  464; 
Ressequie  vs.  Byers,  52  Wis.,  650;  Whitesell  z^s.  Hill,  101  la.,  629,  66 
N.  W.  Rep.,  894. 

f  Gates  vs.  Preston,  41  N.  Y.,  113 ;  Blair  vs.  Bartlett,  15  N.  Y.,  150 ; 
Dunham  vs.  Bower,  77  Id.,  76;  Ely  «.■?.  Wilbur,  49  N.  J.  L.,  685. 

X  In  West  Virginia  the  court  goes  only  so  far  as  to  hold  that  the 
judgment  obtained  by  the  physician  for  the  amount  of  his  fees  is  a  bar 
to  an  action  by  the  patient  for  malpractice  in  that  case,  where  the  patient 
appeared  generally  in  the  suit  instituted  by  the  physician.  Had  the 
judgment  of  the  physician  been  obtained  by  default,  or  had  the  patient 
appeared  specially  to  plead  in  abatement  to  the  action,  then  he  would 


360    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

for  his  fees  in  a  particular  case  is  a  complete  bar  to 
an  action  by  the  patient  for  damages  sustained  by  him 
from  improper  treatment  of  the  physician  in  that  case, 
whether  in  the  defense  the  character  of  the  professional 
services  rendered  is  subject  to  adjudication  or  not. 
K"or  is  the  judgment  in  behalf  of  the  physician  for  his 
fees  the  less  efficacious  because  the  suit  in  which  it  was 
obtained  was  begun  before  a  justice  of  the  peace  after 
suit  was  commenced  in  a  higher  court  by  the  patient  to 
recover  damages  against  the  physician  for  negligent 
treatment  in  the  particular  case.* 

In  those  States  in  which  the  courts  have  not  passed 
upon  this  question  it  must  be  considered  an  open  one. 

Of  Proving  Malpractice. — In  a  former  chapter  of 
this  work  it  has  been  stated  that  the  implied  contract  of 
the  physician  is  not  that  he  will  cure  or  even  benefit  his 
patients,  but  simply  that  he  will  use  ordinary  skill  and 
diligence  in  that  behalf;  and  the  preceding  pages  of 
this  chapter  have  shown  that  the  physician's  liability  to 
a  patient  can  not  be  predicated  upon  the  mere  failure 
of  his  skill  to  benefit  the  patient,  or  upon  the  mere  fact 
that  the  patient  has  become  worse  under  his  treatment, 
but  that  such  liability  must  be  founded  upon  incom- 
petency,  unskillfulness,   or   negligence    shown   in  the 

not  be  precluded  thereby  from  maintaining  an  action  of  malpractice 
against  the  physician.     Lawson  vs.  Conway,  3*7  W.  Va.,  159. 
*  Bellinger  vs.  Craigue,  31  Barb.,  534. 


CIVIL  MALPKACTICE.  361 

treatment  of  the  particular  case,  from  which  unprofes- 
sional treatment  injury  has  resulted.*  It  therefore  fol- 
lows that,  in  an  action  brought  to  recover  damages  re- 
sulting from  malpractice,  proof  of  the  mere  fact  that 
a  fractured  leg  is  shorter  after  healing  does  not  amount 
to  prima  facie  evidence  of  want  of  skill  or  care  in  the 
surgeon  who  attended  the  same.f 

Justice  Lyon,  of  the  Wisconsin  supreme  court,  in 
commenting  upon  the  danger  of  receiving  conditions  as 
evidence  of  improper  treatment,  said :  "  The  sad 
thought,  '  it  might  have  been,'  forces  itself  upon  all 
in  hours  of  sorrow  and  gloom ;  but,  unless  the  thought 
is  verified  by  substantive  and  reasonably  conclusive 
proof,  it  furnishes  no  safe  basis  of  judicial  judgment. 

"  It  is  a  frequent  occurrence  that  patients  change 
their  physicians;  also,  that  the  second  physician  called 
disapproves  the  treatment  of  his  predecessor,  and 
changes  it,  perhaps  properly,  and  the  patient  dies.  In 
such  a  case,  if  it  should  appear  that  the  practice  of  the 
physician  first  called  was  incorrect,  there  is  always 
room  to  conjecture  that  had  the  patient  been  properly 
treated  in  the  first  instance  he  would  not  h-ave  died. 
And  yet,  if  a  verdict  based  upon  mere  conjecture  could 
be  sustained,  holding  the  physician  first  employed  guilty 
of  causing  the  death  of  the  patient,  the  practice  of  med- 

*  "Wurdemann  vs.  Barnes,  92  Wis.,  206. 
\  Piles  vs.  Hughes,  10  Iowa,  5*79. 


362    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

icine  and  surgery  would  be  most  perilous  callings.  The 
law  does  not  subject  the  members  of  those  or  any  other 
professions  to  any  such  peril."  * 

And  so,  where  an  oculist  operated  upon  a  girl  of 
seven  years,  who  had  been  cross-eyed  for  some  years,  for 
the  purpose  of  straightening  her  eye,  and  the  evidence 
showed  that  he  performed  the  operation  in  the  usual 
and  approved  manner,  and  bandaged  the  child's  eyes 
and  gave  directions  for  her  future  treatment,  other 
evidence  will  be  required  upon  which  to  base  a  verdict 
against  the  oculist  than  that  the  child  lost  the  sight  of 
the  eye  after  the  operation.  To  justify  such  a  verdict 
there  must  be  evidence  showing  a  want  of  the  requi- 
site skill,  knowledge,  or  care  on  the  part  of  the  oculist. 
The  court,  on  review  of  this  case,  said :  "  We  feel  cer- 
tain that  a  verdict  in  favor  of  the  plaintiff  was  not  au- 
thorized by  the  evidence,  and  we  believe  that  sympathy 
for  the  plaintiff  unduly  influenced  the  jury  in  render- 
ing such  a  verdict."  f 

In  the  case  of  Sims  vs.  Parker,J  the  plaintiff,  feel- 
ing certain  pains,  went  to  the  defendant,  who  examined 
him  and  told  him  that  he  was  ruptured,  and  thereupon 
applied  a  truss.  After  the  truss  was  put  on  the  plain- 
tiff suffered  great  pain  and  went  back  several  times,  but 

*  Gores  vs.  Graff,  11  Wis.,  114,  46  N.  W.  Rep.,  48. 
f  Feeney  vs.  Spalding,  89  Me.,  Ill,  35  Atl.  Rep.,  1027. 
X  Sims  vs.  Parker,  41  111.  App.,  284. 


CIVIL  MALPRACTICE.  363 

was  told  that  the  pressure  of  the  truss  Tvas  necessary. 
The  evidence  showed  that  the  plaintiff  was  a  fleshy 
man,  that  at  the  time  he  first  applied  to  the  defendant 
there  was  a  slight  swelling  or  protuberance  at  the  point 
where  he  located  the  pain,  and  that  the  defendant  ad- 
justed the  bulb  of  the  truss  over  this.  When  the  truss 
was  taken  off  at  the  end  of  two  weeks  this  swelling  had 
increased  and  developed  into  an  abscess.  The  physician 
who  attended  the  plaintiff  for  the  abscess  was  unable  to 
say  whether  there  was  an  incipient  abscess  at  the  time 
the  truss  was  first  adjusted  or  whether  the  abscess  was 
produced  by  the  truss. 

The  fair  conclusion  from  the  evidence  given  by  the 
experts  was  that  there  was  no  rupture  on  the  plaintiff. 
It  was  also  shown  that  it  is  very  difficult  in  certain 
cases  to  tell  with  certainty  whether  there  is  in  fact  a 
hernia  or  not,  particularly  in  the  ease  of  fleshy  persons. 

There  was  also  evidence  that  tended  slightly  to  show 
that  the  abscess  was  caused  by  the  pressure  of  the  truss, 
but  there  was  no  evidence  that  the  defendant  was  negli- 
gent or  unskillful  in  his  diagnosis  or  in  fitting  the 
truss. 

This  evidence  was  held  to  be  insufficient  to  warrant 

a  verdict  for  the  plaintiff.     The  court  said :  "  Proof 

that  he  was  mistaken  as  to  the  existence  of  a  rupture, 

or  that  the  abscess  was  caused  by  the  pressure  of  the 

truss,  was  not  enough  to  entitle  plaintiff  to  a  verdict. 
24 


364    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

"  Proof  of  a  bad  result  or  of  a  mishap  is  of  itself  no 
evidence  of  negligence  or  lack  of  skill.  The  defendant 
is  qualified  to  practise  medicine  and  surgery,  and  the 
evidence  of  the  experts  in  his  profession  show  him  com- 
petent and  skillful.  Before  a  recovery  could  be  had 
against  him  it  must  be  shown  that  his  treatment  was  im- 
proper or  negligent,  not  merely  that  he  was  mistaken 
or  that  his  treatment  resulted  injuriously  to  the  plain- 
tiff. A  physician  or  surgeon,  or  one  who  holds  himself 
out  as  such,  is  only  bound  to  exercise  ordinary  skill  and 
care  in  the  treatment  of  a  given  case,  and  in  order  to 
hold  him  liable  it  must  be  shown  that  he  failed  to  exer- 
cise such  skill  and  care. 

"  The  jury  can  not  draw  the  conclusion  of  unskillful- 
ness  from  proof  of  what  the  result  of  the  treatment 
was,  but  that  the  treatment  was  improper  must  be 
shoAvn  by  evidence." 

From  this  and  the  preceding  cases  it  may  properly 
be  inferred  that  the  burden  of  proof  is  always  upon  the 
party  attempting  to  show  that  the  physician  has  been 
guilty  of  lack  of  skill  or  of  want  of  care.  This  has  been 
held  to  be  the  law  in  a  number  of  cases,*  whether  the 
question  arises  in  a  suit  against  the  doctor  for  malprac- 
tice, or  whether  the  issue  is  raised  in  a  suit  begun  by 

*  Chase  vs.  Nelson,  39  111.  App.,  53 ;  Kobinson  vs.  Campbell,  4*7  la., 
625. 


CIVIL  MALPRACTICE.  365 

the  doctor  against  his  patient  for  the  recovery  of  fees^ 
and  incompetence  and  negligence  are  pleaded  by  the  de- 
fendant as  a  defense  to  the  action. 

The  general  rule  regarding  the  burden  of  proof  is 
very  well  stated  by  Justice  Mayham  as  follows :  "  The 
burden  of  establishing  affirmatively  either  want  of  ordi- 
nary skill,  or  a  failure  to  use  his  best  skill,  or  some  neg- 
ligence in  the  care  or  attention  of  the  plaintiff's  case, 
which  resulted  to  her  injury,  must  be  met  before  she 
can  recover."  * 

And  so  in  a  case  where  the  patients  had  sustained  a 
Pott's  fracture  and  the  physician,  so  the  evidence 
seemed  to  indicate,  diagnosticated  and  treated  it  as  a 
fracture  of  both  bones  at  a  point  about  five  inches  above 
the  ankle,  the  court  held  there  was  no  evidence  upon 
which  to  sustain  a  verdict  of  damages  for  permanent  in- 
jury by  stiffening  of  the  ankle  joint.  In  this  case  an 
expert  witness  introduced  by  the  plaintiff  stated,  on 
cross-examination,  that  he  recognized  the  fact  as  an  ex- 
pert witness  that  a  Pott's  fracture  will  probably  leave 
the  joint  in  a  permanently  inferior  condition,  even  when 
the  very  best  surgical  skill  is  employed,  and  is  employed 
at  the  most  opportune  time,  and  under  the  best  circum- 
stances. In  answer  fo  the  question,  "  You  are  not  pre- 
pared to  say  to  the  jury  that  the  present  condition  that 

*  Winner  vs.  Lathrop,  67  Hun,  51L 


366    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  plaintiff  presents  is  due  to  the  fact  of  what  he 
says  in  regard  to  the  treatment  he  received  at  the 

hands  of  Dr.  ?  "  the  expert  replied,  "  I  have  not 

said  it." 

The  court  said :  "  It  seems  to  us,  therefore,  that  the 
case  is  absolutely  barren  of  any  evidence  from  which  it 
may  be  inferred  that  the  permanent  injury  which  the 
plaintiff  would  suffer  had  come  from  any  neglect  or 
want  of  skill  on  the  part  of  the  defendant."  * 

But  what  is  the  character  of  proof  required  by  the 
courts  to  fix  liability  upon  the  physician  for  the  unfor- 
tunate results  attending  his  treatment  ? 

The  case  of  Pettigrew  vs.  Lewis  et  al.  \  is  instruc- 
tive upon  this  point.  The  plaintiflE  had  undergone  an 
operation  for  strabismus.  The  evidence  given  by  the 
plaintiff  was  that  prior  to  the  operation  her  eye  was 
strong  and  in  good  condition,  except  as  to  the  affection 
for  which  it  had  been  treated;  that  the  operation  was 
successful  in  straightening  the  eye,  but  that  afterward 
neither  eye  was  as  strong  as  before;  that  some  time 
after  the  operation  she  had  "  a  spell  of  sore  eyes  " ;  that 
the  lids  were  afterward  inflamed  and  her  "  eyes  wa- 
tered "  when  she  went  out  in  the  wind  or  cold ;  that  she 
found  on  attempting  to  use  he^  eyes  that  they  were 
weak,  and  that  it  was  necessary  to  bring  objects  close 

*  Smith  vs.  Dumond,  6  N.  Y.  Supp.,  242. 

f  Pettigrew  vs.  Lewis  et  al.,  46  Kan.,  78,  26  Pac.  Rep.,  458. 


CIVIL  MALPRACTICE.  367 

to  her  in  order  to  see  clearly.  This,  it  seems,  is  about 
the  extent  of  the  evidence  offered  on  behalf  of  the  plain- 
tiff. The  supreme  court,  in  reviewing  the  case,  dis- 
courses very  comprehensively  upon  the  character  of  evi- 
dence required  in  such  a  case  to  fix  liability  upon  the 
physician.  The  following  liberal  extract  is  therefore 
taken  from  the  opinion : 

"  To  maintain  her  action,  the  plaintiff  should  have 
offered  the  evidence  of  skilled  witnesses  to  show  that 
the  present  condition  of  her  eyes  was  the  result  of  the 
operation,  and  that  it  was  unskillfully  and  negligently 
performed.  '  This  evidence  must  from  the  very  iiature 
of  the  case  come  from  experts,  as  other  witnesses  are 
not  competent  to  give  it,  nor  are  juries  supposed  to  be 
conversant  with  what  is  peculiar  with  the  science  and 
practice  of  the  professions  of  medicine  and  surgery  to 
that  degree  which  will  enable  them  to  dispense  with  all 
explanations.'  * 

"  *  The  question  whether  a  surgical  operation  has 
been  unskillfully  performed  or  not  is  one  of  science,  and 
is  to  be  determined  by  the  testimony  of  skillful  surgeons 
as  to  their  opinion,  founded  either  wholly  upon  an  ex- 
amination of  the  part  operated  on,  or  partly  upon  such 
examination,  and  partly  on  information  derived  from 
the  patient;  or  partly  on  such  examination,  partly  on 

*  Tefft  vs.  Wilcos,  6  Kan.,  46. 


368    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS, 

such  information,  and  partly  on  facts  conceded  or 
proved  at  the  trial;  or  partly  on  such  examination  and 
partly  on  facts  conceded  or  proved  at  the  trial/  *  It 
would  have  been  easy  for  the  plaintiff  to  have  submitted 
to  an  examination  by  an  experienced  physician  or  ocu- 
list capable  of  determining  whether  the  condition  of  her 
eyes  was  the  result  of  the  operation,  and  whether  that 
operation  was  performed  with  reasonable  skill  and  care. 
Cases  may  arise  where  there  is  such  gross  negligence 
and  want  of  skill  in  performing  an  operation  as 
to  dispense  with  the  testimony  of  professional  wit- 
nesses; but  not  so  in  the  present  case.  It  is  not  con- 
ceded or  proved  that  the  weakness  of  her  eyes  had  mate- 
rially resulted  from  the  operation ;  and  even  if  it  was  the 
question  would  still  arise,  Was  she  in  a  fit  physical  con- 
dition to  undergo  the  operation?  Did  the  defendants, 
before  beginning  the  operation,  make  due  examination 
to  determine  her  condition  and  the  necessity  for  an 
operation?  Was  the  operation  performed  in  a  careful 
and  skillful  manner?  What  was  the  standard  of  pro- 
fessional skill  and  scientific  knowledge  required  of  these 
men  in  that  locality?  Was  the  after-treatment  and 
were  the  directions  given  for  the  subsequent  care  of  the 
eye  such  as  would  meet  the  approval  of  the  profession 
in  its  present  advanced  condition?     If  a  mistake  was 

*  McClel.  Mai.,  304. 


CIVIL  MALPRACTICE.  369 

made,  was  it  a  case  of  reasonable  doubt  or  "ancertainty  or 
a  mere  error  in  judgment,  for  which  there  is  no  respon- 
sibility ?  It  was  the  duty  of  the  defendants  to  exercise 
ordinary  care  and  skill;  and,  this  being  a  duty  im- 
posed by  law,  it  will  be  presumed  that  the  operation 
was  carefully  and  skillfully  performed  in  the  absence 
of  proof  to  the  contrary/'  * 

Exceptions. — It  will  be  observed  that  in  the  forego- 
ing statement  the  court  says :  "  Cases  may  arise  where 
there  is  such  gross  negligence  and  want  of  skill  in  per- 
forming an  operation  as  to  dispense  with  the  testimony 
of  professional  witnesses."  This,  in  other  words,  means 
that  cases  may  arise  in  which  a  presumption  of  unskill- 
fulness  or  negligence  on  the  part  of  the  physician  will 
arise  from  the  condition  in  which  such  treatment  has 
left  the  patient.  Such  a  case,  it  will  be  clearly  seen, 
forms  an  exception  to  all  of  the  rules  above  laid  down 
for  proving  negligence  and  incompetency.  A  recent 
Minnesota  case  appears  to  illustrate  this  exception.  In 
this  case,  however,  the  evidence  is  so  meagrely  stated  in 
the  report  that  it  can  not  be  determined  with  certainty 
whether  the  opinion  of  the  court  was  based  upon  the 
mere  condition  of  the  patient  or  whether  there  was  evi- 
dence before  it  of  particular  acts  of  negligence  or  un- 
Bkillfulness  which  the  record  fails  to  disclose.     The  case 

*  State  vs.  Housekeeper  et  uL,  10  Md.,  162. 


3Y0    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

was  as  follows :  The  patient  had  suffered  a  miscar- 
riage, having  been  delivered  of  a  five-months-old  foetus. 
The  physician  removed  the  placenta,  but  in  so  doing  per- 
mitted a  piece  of  it  about  two  inches  long  and  two  thirds 
of  an  inch  thick  to  remain ;  blood  poisoning  and  a  septic 
condition  of  the  patient  ensued  from  which  her  left  leg 
became  gangrenous,  necessitating  amputation.  Wheth- 
er there  was  any  evidence  offered  showing  that  the 
defendant's  treatment  was  improper  may  be  reasonably 
doubted  from  the  report  of  the  case,  wherein  the  court, 
upon  this  question,  simply  says :  "  Unexplained,  the  evi- 
dence was  sufficient  to  justify  the  conclusion  that  the  de- 
fendant, in  the  exercise  of  that  degree  of  care  and  skill 
which  the  law  exacts  of  a  physician,  might  and  ought 
to  have  reasonably  discovered  and  removed  the  remnant 
of  the  afterbirth."  *  A  proper  deduction  from  this 
seems  to  be  that  the  condition  of  the  patient  bespoke  im- 
proper professional  treatment,  which  it  became  incum- 
bent upon  the  defendant  to  explain;  thus  forming  an 
exception  to  the  general  rule  prescribed  for  proving  the 
physician's  liability. 

Another  case  which  seems  clearly  to  be  an  exception 
to  the  rule  is  that  of  Lewis  vs.  Dwinell,f  in  which  the 
defendant,  after  repeated  examinations,  informed  the 
plaintiff   that   she   was   "  all  right,"   notwithstanding 

*  Moratzky  vs.  Wirth,  67  Minn.,  46. 
•)-  Lewis  vs.  Dwinell,  84  Me.,  497. 


CIVIL  MALPRACTICE.  3Y1 

she  had  sustained  a  serious  rupture  of  the  perinaeum. 
Upon  the  question  of  the  defendant's  liability  as  shown 
from  the  evidence  and  from  the  plaintiff's  condi- 
tion, Justice  Haskell  said :  "  If  the  defendant  knew  of 
the  rupture  and  concealed  it  from  the  plaintiff,  neither 
taking  measures  for  its  repair  or  relief  himself  nor  giv- 
ing an  opportunity  for  other  professional  skill  to  be  em- 
ployed, little  can  be  said  in  his  excuse.  But  if  the  de- 
fendant neither  discovered  the  lesion  nor  had  any  knowl- 
edge of  it,  a  different  question  arises:  Was  he  profes- 
sionally negligent  in  his  examinations  ?  He  was  a  phy- 
sician of  seven  years'  practice,  a  graduate  of  Boston 
University,  and  must  have  possessed  the  ordinary  skill 
and  learning  required  in  such  cases.  His  failure  then  to 
discover,  after  repeated  examinations,  the  serious  injury 
from  which  the  plaintiff  was  suffering,  must  be  held  to 
be  actionable  negligence.  Eeasonable  attention  from  a 
physician  of  ordinary  intelligence  would  have  discov- 
ered so  palpable  an  injury." 

Upon  the  trial  of  a  suit  for  damages  resulting  from 
malpractice,  the  liability  of  the  physician  is  a  matter 
to  be  passed  upon  by  the  jury;  aided  by  the  evidence 
of  expert  witnesses,  who  are  supposed  to  enlighten  them 
upon  all  matters  of  professional  knowledge  involved  in 
the  case,  and  guided  in  their  deliberations  by  instruc- 
tions from  the  trial  judge  upon  the  law  applicable  to 
the  questions  before  them. 


372    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Measure  of  Damages. — Damages  is  defined  as  "the 
injury  or  loss  for  which  compensation  is  sought,"  *  and 
the  measure  of  damages  refers  to  the  amount  or  extent 
of  such  "  injury/'  or  "  loss  " ;  or,  perhaps,  more  proper- 
ly, to  the  amount  of  compensation  to  be  awarded  in  ad- 
justment of  such  "  injury  "  or  ''  loss." 

In  assessing  the  amount  of  damages  which  the  in- 
jured party  should  receive  to  compensate  him  for  the 
injury  or  loss  he  has  sustained,  three  distinct  classes 
are  recognized  and  awarded  to  suit  the  merits  of  the 
case:  First,  nominal  damages,  or  some  trifling  sum, 
which  is  awarded  when  a  breach  of  duty  or  an  infraction 
of  the  plaintifE's  right  is  shown,  but  no  serious  loss  is 
proved  to  have  been  sustained. 

Second,  substantial  or  compensatory  damages. 
These  are  such  as  are  designed  and  awarded  to  compen- 
sate for  the  actual  loss  or  injury  sustained. 

Third,  exemplary  damages,  also  termed  punitive 
and  vindictive  damages.  This  class  of  damages  exceeds 
the  loss  actually  sustained,  and  is  given  as  a  kind  of 
punishment  to  the  defendant. 

Nominal  Damages. — Nominal  damages,  it  seems,  are 
implied  by  law  when  there  is  shown  to  have  been  a 
violation  of  the  plaintiff's  right,  but  where  no  damages 
are  shown  by  the   evidence  to  have  been  sustained. 

*  Bouv.  Law  Die.     Title,  Damages. 


CIVIL  MALPRACTICE.  373 

Nominal  damages  are  also  proper  in  those  cases  where 
lack  of  skill  or  care  is  shown,  but  where  it  is  impossible 
to  distinguish  between  the  consequences  of  the  physical 
ailment  for  which  the  patient  was  being  treated  and 
those  of  the  lack  of  professional  skill  and  care.* 

Compensatory  Damages. — Substantial  or  compensa- 
tory damages  can  be  awarded  only  when  there  is  evi- 
dence adduced  at  the  trial  of  a  loss  or  injury  sustained 
from  the  defendant's  wrongful  act  upon  which  suit  is 
brought.  In  such  a  case  it  is  the  duty  of  the  jury 
to  weigh  the  evidence  and  fix  such  an  amount  as  in  their 
opinion  properly  compensates  the  injured  party  for  the 
loss  suffered,  as  determined  from  the  evidence  before 
them. 

In  estimating  such  damages  it  is  proper  for  the 
jury,  when  there  is  evidence  before  them  to  justify  their 
so  doing,  to  take  into  consideration  : 

The  expenses  incurred  by  way  of  physician's  or  sur- 
geon's fees,  nursing,  and  drugs  and  medicines  which 
have  been  rendered  necessary  by  the  unprofessional 
treatment  complained  of.  They  must,  however,  care- 
fully exclude  from  this  item  all  expenses  of  the  sort 
necessitated  by  the  original  sickness  or  injury  for 
which  the  defendant  treated  the  patient.  If  the  ex- 
penses for  the  original  illness  and  those  necessitated  by 

*  Becker  vs.  Janinski,  27  Abb.  N.  C,  45. 


374    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  aggravated  injuries  or  injuries  caused  by  the  act 
complained  of  can  not  be  separated,  then  this  item 
should  not  be  considered. 

The  loss  of  time  caused  by  such  injury,  together 
with  the  value  of  the  same. 

The  physical  and  mental  pain  and  suffering  endured 
as  a  direct  result  of  such  improper  treatment. 

And  in  cases  where  the  injury  is  shown  to  be  per- 
manent, the  jury  may  consider  its  effect  upon  the 
plaintiff^s  capacity  to  earn  money  in  the  future,  and 
also  consider  future  pain  and  suffering,  both  physical 
and  mental. 

Exemplary  Damages. — ^Whenever  the  unprofessional 
treatment  upon  which  the  suit  is  based  is  attended  with 
fraud,  malice,  or  gross  negligence,  and  such  fact  is 
shown  to  the  jury  by  the  evidence,  they  may,  in  assessing 
the  plaintiff's  damages,  consider  not  only  the  actual 
expense  inflicted  upon  him,  together  with  the  amount 
proper  to  compensate  him  for  physical  and  mental  an- 
guish, but  may  go  still  further  and  inflict  damages 
upon  the  defendant  for  his  intentionally  vicious  or 
grossly  improper  act.  Such  damages  are  exemplary  or 
punitive,  and  are  allowable  upon  the  theory  that  they 
will  act  as  a  punishment  to  the  wrongdoer,  and  thereby 
deter  others  from  committing  like  flagrant  acts. 

While  the  foregoing  general  treatment  of  damages 
as  involved  in  the  scope  of  these  articles  is  calculated  to 


CIVIL  MALPRACTICE.  3Y5 

give  the  practitioner  a  comprehensive  although  rather 
superficial  idea  of  the  subject,  it  is  thought  that  a  more 
particular  and  less  extended  examination  will  be  of 
greater  value  and  more  satisfactory  to  the  reader.  This 
effect  is  designed  to  be  accomplished  by  examining  par- 
ticular cases,  thus  showing  correctly  the  application  of 
these  governing  rules. 

Illustrations:  Nominal  Damages. — ISTominal  dam- 
ages are  proper  and  are  the  only  damages  that  the  jury 
will  be  permitted  to  assess  either  where  no  damages  are 
shown  by  the  evidence  to  have  been  sustained  or  where 
the  injury  sustained  from  the  defendant's  improper 
treatment  can  not  be  distinguished  from  the  sickness  or 
injury  for  which  the  plaintifE  was  treated. 

In  the  case  of  Becker  vs.  Janinski,*  the  plaintiff  had 
a  miscarriage.  The  evidence  showed  some  improper 
treatment  by  the  defendant;  it  also  showed  that  the 
patient's  general  health  was  impaired.  There  was  evi- 
dence introduced  on  behalf  of  the  defendant  to  show 
the  injurious  effect  of  a  miscarriage  upon  the  general 
health,  from  which  it  was  argued  that  the  injury  com- 
plained of  to  the  plaintiff's  health  was  the  result  of  the 
miscarriage,  for  which  the  defendant  was  not  to  blame; 
and,  at  least,  that, it  was  impossible  to  say  the  injury 
was   due   solely  to   the   alleged   improper  treatment. 

*  Becker  vs.  Janinski,  27  Abb.  N.  C,  45. 


3T6    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Upon  this  point  the  jury  was  instructed  that  "  The  de- 
fendant not  being  responsible  for  the  miscarriage,  he  is 
not  to  be  made  liable  for  any  of  its  consequences.  If 
liable  at  all,  he  is  liable  only  for  the  effects  of  his  mal- 
treatment of  the  plaintiff.  So  that,  should  you  find  it 
impossible  to  distinguish  between  the  consequences  of 
the  miscarriage  and  the  consequences  of  the  maltreat- 
ment— should  you  be  unable  to  find  upon  the  evidence 
that  the  plaintiff  has  suffered  any  injury  distinctively 
due  to  maltreatment — you  will  award  only  nominal 
damages  against  the  defendant." 

Illustrations :  Compensatory  Damages. — In  this  class 
of  damages  the  jury  are  supposed  to  determine  as  accu- 
rately as  possible  the  extent  of  the  injury  suffered  by 
the  plaintiff  and  give  him  damages  which  shall  fairly 
compensate  him  for  the  loss  and  injury  sustained. 
There  are,  however,  so  many  elements  to  be  considered  in 
determining  damages  in  this  kind  of  cases  which  can 
not  be  reduced  to  an  accurate  monetary  basis  that  the 
verdicts  of  different  juries  will  very  materially  differ  in 
the  same  case. 

This  is  very  well  illustrated  in  the  case  of  Barnes 
vs.  Means.*  Here  the  plaintiff  had  sustained  fractures 
of  the  tibia  and  fibula ;  that  of  the  tibia  was  oblique  and 
near  the  upper  part  of  the  lower  third  of  the  limb, 
while  that  of  the  fibula  was  nearly  transverse,  and  was 
»  Barnes  vs.  Means,  82  111.,  Sl9. 


CIVIL  MALPRACTICE.  3Y7 

from  three  to  fonr  inches  above  the  ankle  joint.  By 
reason  of  not  applying  extension  and  counter-extension 
at  the  proper  time  the  bones  were  allowed  to  lap  three 
quarters  of  an  inch.  This  case  was  twice  tried.  The 
first  jury  assessed  the  damages  at  five  hundred  dollars. 
On  motion  of  defendant  the  verdict  was  set  aside,  a  new 
trial  was  had,  and  the  damages  were  assessed  by  the  new 
jury  at  one  thousand  dollars. 

Probably  the  most  satisfactory  manner  of  arriving 
at  an  appropriate  idea  of  what  juries  are  disposed  to 
consider  a  fair  compensation  in  this  class  of  cases  is  by 
observing  the  amount  which  they  have  given  in  a  few  of 
their  verdicts. 

In  the  case  of  AVood  vs.  Clapp.*  a  verdict  of  one 
thousand  dollars  was  assessed  where  the  evidence  showed 
an  improper  and  unsuccessful  treatment  of  an  arm 
which  resulted  in  permanent  disability. 

In  the  case  of  Smothers  vs.  Hanks, f  both  bones  of 
the  plaintiff's  arm  were  fractured  near  the  wrist.  The 
evidence  showed  unskillful  treatment.  The  arm,  hand, 
and  fingers  were  crooked  and  stiff — perhaps  permanent- 
ly so.  The  jury  gave  a  verdict  for  two  thousand  dollars. 
This,  on  motion  for  a  new  trml,  was  reduced  to  twelve 
hundred  dollars,  probably  by  mutual  consent  of  the 
parties. 

*  Wood  vs.  Clapp,  4  Sneed  (Tenn.),  65. 
f  Smothers  vs.  Hanks,  34  la.,  286. 


378    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

In  the  case  of  Teft  vs.  Wilcox,*  the  plaintiff,  who 
had  suffered  from  rheumatism  and  neuralgia  in  his 
shoulder,  sustained  a  dislocation  of  the  shoulder  joint. 
From  the  improper  treatment  of  this  injury  the  shoul- 
der became  permanently  disabled.  His  damages  were 
assessed  at  two  thousand  nine  hundred  dollars. 

It  was  held  in  the  case  of  Kelsey  vs.  Hay  f  that  a 
verdict  of  four  thousand  five  hundred  dollars  was  not 
excessive  where  the  plaintiff  was  crippled  in  both  legs 
for  life  by  the  ignorance  and  mismanagement  of  his 
physician.  The  deformity  complained  of  resulted 
from  improper  treatment  of  fractures  in  both  legs,  at 
what  points  the  report  does  not  show. 

In  the  case  of  Quinn  vs.  Higgins  l  damages  amount- 
ing to  one  thousand  six  hundred  dollars  were  awarded 
for  maltreatment  of  a  fractured  leg  which  resulted  in 
a  "  false  joint." 

In  the  case  of  Williams  vs.  Poppleton  *  the  plain- 
tiff had  received  an  injury  at  the  ankle,  probably  a  dis- 
location and  slight  fracture.  There  was  some  evidence 
of  improper  treatment;  the  bones  became  diseased  and 
the  leg  Avas  amputated  above  the  knee.  The  jury  found 
a  verdict  of  nine  hundred'dollars.     Whether  this  verdict 


*  Teft  vx.  Wilcox,  6  Kan.,  51. 
\  Kelsey  vs.  Hay,  84  Ind..  189. 

X  Quinn  vs.  Higgins,  63  Wis  ,  664. 

*  Williams  vs.  Poppleton,  3  Oregon,  139. 


CIVIL  MALPRACTICE.  379 

was  intended  as  a  compensation  for  the  loss  of  the  leg 
through  improper  treatment  of  the  defendant^  or  wheth- 
er it  was  for  unnecessarily  and  improperly  prolonging 
the  plaintifE's  sufferings  in  not  performing  the  amputa- 
tion for  a  considerable  time  after  it  should  have  been 
performed,  does  not  appear.  It  was  probably  intended 
for  the  latter. 

The  jury  awarded  damages  to  the  amount  of  two 
thousand  and  twenty-five  dollars  in  the  case  of  How- 
ard vs.  Grover,*  where  the  defendant  performed  two 
amputations  upon  the  plaintiff's  thigh,  both  of  which 
were  unsuccessful.  The  first  amputation  was  at  the 
proper  place,  but  the  bone  was  left  protruding  too  far; 
the  second  was  not  shown  to  have  been  improperly  per- 
formed, but  was  not  performed  at  the  right  place.  The 
court,  in  commenting  upon  the  amount  of  this  verdict, 
said:  "The  practice  of  surgery  is  indispensable  to  the 
community,  and  while  damages  should  be  paid  for  negli- 
gence and  carelessness,  surgeons  should  not  be  deterred 
from  the  pursuit  of  their  profession  by  intemperate 
and  extravagant  verdicts.  The  compensation  to  sur- 
geons in  the  country  is  small  in  comparison  with  what 
is  paid  in  cities  for  similar  services,  and  an  error  of  judg- 
ment is  visited  with  severe  penalty,  which  takes  from 
one  a  large  share  of  the  surplus  earnings  of  a  long  life." 


*  Howard  vs.  Grover,  28  Me.,  97. 
25 


380    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

The  court  expressed  the  opinion  that  the  jury  must  have 
been  actuated  "  by  some  undue  influence  "  in  assessing 
the  amount  of  damages;  they  expressed  great  reluc- 
tance, however,  to  interfering,  and  therefore  stated  that 
the  verdict  might  stand  if  the  plaintiff  would  remit  five 
hundred  dollars  of  the  amount  assessed. 

It  is  perhaps  proper  to  say  that  this  case  arose  in 
Maine,  and  was  tried  in  1848. 

For  the  improper  treatment  of  an  eye,  from  which 
loss  of  sight  in  that  eye  resulted,  a  Missouri  Jury  gave 
a  verdict  of  $36.2.75,*  evidently  a  compromise  verdict. 

For  the  failure  of  a  physician  to  discover  and  repair 
a  serious  rupture  of  the  perinseum  a  Maine  jury  as- 
sessed damages  at  four  hundred  and  fifty  dollars,  f  And 
for  improper  uterine  treatment,  whereby  the  neck  of 
the  womb  became  closed,  entailing  much  suffering  and 
considerable  expense,  a  Wisconsin  jury  assessed  dam- 
ages at  three  hundred  and  fifty  dollars.  J 

Illustrations :  Exemplary  Damages. — ^TJpon  the  ques- 
tion of  exemplar}''  damages,  the  case  of  Brooke  vs. 
Clark  *  is  instructive.  In  this  case  the  attending  phy- 
sician tied  a  ligature  around  the  child's  penis,  instead 
of  the  umbilical  cord,  at  his  birth,  whereby  the  glans  of 
the  penis  came  entirely  off. 

*  McMurdock  vs.  Kimberlin,  23  Mo.  App.,  523. 
f  Lewis  vs.  Dwinell,  84  Me.,  49*7. 

X  Gates  vs.  Fleischer,  67  Wis.,  504. 

#  Brooke  vs.  Clark,  57  Tex.,  105. 


CIVIL   MALPRACTICE.  381 

The  facts  may  probably  be  best  gathered  from  the 
evidence  of  the  child^s  grandmother,  which  was  as  fol- 
lows :  "  Dr. was  the  attending  physician.    He  was 

standing  at  the  foot  of  the  bed  and  received  the  child 
from  its  mother.  Before  receiving  the  child  from  be- 
neath the  bedclothes  he  tied  one  cord  or  ligature,  and 
then  removed  the  cover,  tied  the  second  ligature,  and  cut 
the  umbilical  cord,  when  the  child  was  by  Dr. hand- 
ed to  the  witness,  who  wrapped  it  in  a  blanket  and  sat  by 
the  stove  trying  to  quiet  it.  When  the  first  ligature 
was  tied  the  child  cried  out  like  it  was  hurt,  and  con- 
tinued to  cry  for  about  an  hour.  The  doctor  then  took 
the  child  in  his  lap  and  examined  it,  and  said  the 
string  had  slipped  oS  the  navel  cord.  He  asked  for  an- 
other string,  which  I  gave  him.  I  had  given  him  one  at 
his  request  before  the  child  was  born;  both  were  com- 
mon wrapping  twine.     Mrs.  C.  assisted  Dr.  ,  and 

he  tied  a  string  on  the  navel  cord  and  returned  the 
child  to  me,  and  I  washed  and  dressed  it  and  cared  for 
it  until  morning.  The  child  had  spells  of  crying 
through  the  night ;  all  the  dressing  that  was  done  next 
day  was  changing  its  diaper,  and  that  was  done  by  me. 
When  washing  the  child  next  morning  I  found  a  string 
hanging  down,  and,  taking  hold  of  it,  I  found  it  was 
tied  to  the  child's  penis ;  it  was  a  part  of  the  same  cord 

witness  gave  to  Dr. the  night  before.     I  had  charge 

of  the  child  at  nio-ht.    When  Dr. came  in  I  showed 


382    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

him  what  he  had  done,  and  he  said  it  was  probably 
owing  to  Mrs.  C.  being  excited  and  holding  up  the 
wrong  thing  for  him  to  tie.  There  was  but  one  string 
around  the  navel  cord  when  I  dressed  the  child.  There 
was  no  string  tied  after  the  child  was  dressed;  no  one 

had  the  child  before  it  was  dressed  but  Dr.  and 

myself."  Upon  the  trial  of  the  case  the  jury  fixed  the 
damages  at  five  thousand  five  hundred  dollars. 

In  commenting  upon  the  propriety  of  exemplary 
damages  in  this  case  Justice  Gould  said :  "  The  criminal 
indifference  of  the  defendant  to  results  was  a  fact 
which  the  jury  were  at  liberty  to  infer  from  the  gross 
mistake  which  he  either  made  or  permitted  to  be  made, 
and  the  grievous  injury  which  was  liable  to  result  and 
did  result  therefrom.  If  there  was  other  evidence  tend- 
ing to  negative  any  wrong  intent  or  actual  indifference 
on  his  part,  still  the  existence  or  non-existence  of  such 
criminal  indifference  was  a  question  of  fact  for  the 
jury,  and  was  rightly  submitted  to  them.  If  the  con- 
duct of  the  defendant  in  the  discharge  of  his  duty  as 
accoucheur  was  so  grossly  negligent  as  to  raise  the  pre- 
sumption of  his  criminal  indifference  to  results,  we 
very  greatly  doubt  whether  it  should  avail  to  exempt 
him  from  exemplary  damages  for  him  to  show  that  he 
had  no  bad  motive,  and  that  he  acted  otherwise  in  a 
manner  tending  to  show  that  he  was  not,  at  heart,  in- 
different.    Where  the  act  is  so  grossly  negligent  as  to 


CIVIL  MALPRACTICE.  383 

raise  the  presumption  of  indifference,  evidence  that  in 
other  matters  connected  therewith  he  had  shown  due 
care,  and  that  actual  indifference  would  have  been  in 
fact  indifference  to  his  own  interest,  should,  we  think, 
not  be  allowed  for  any  other  purpose  than  to  be  consid- 
ered by  the  jury  in  fixing  the  amount  of  exemplary 
damages." 

It  is  believed  that  in  this  case  the  court  expresses 
the  true  rule  governing  exemplary  damages.  The  ques- 
tion is,  however,  one  upon  which  there  is  conflict  of 
authority.  In  an  earlier  Michigan  case  the  court  ex- 
presses the  opinion  that  when  the  evidence  shows  no 
evil  motive  in  the  commission  of  an  act,  the  jury  can 
not  give  exemplary  damages;  and  this  opinion  was  ex- 
pressed in  the  face  of  evidence  sufficient,  to  use  the  lan- 
guage of  the  court,  "  to  show  such  a  total  want  of  skill, 
and  such  a  degree  of  carelessness,  as  would  in  law  make 
the  defendant  below  guilty  of  manslaughter."  *  The 
court  in  this  case  also  expressed  sentiments  upon  other 
phases  of  the  question  of  damages  which  have  not  been 
approved  by  the  wisdom  of  recent  years,  and  it  may 
reasonably  be  doubted  that  the  law  as  expressed  therein 
relative  to  exemplary  damages  will  be  recognized  in 
future  decisions  as  the  correct  doctrine. 

Judgment  for  Plaintiff  Bars  Action  for  Subsequently 
Accruing  Damages. — It  has  been  shown  that  the  jury,  in 

*  Hyatt  vs.  Adams,  16  Mich.,  180. 


384    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

assessing  damages,  may  properly  consider  the  effect  of 
the  injury  upon  the  plaintiff's  capacity  to  earn  money 
in  the  future;  also  the  future  pain  and  anguish,  both 
physical  and  mental,  that  will  necessarily  or  naturally 
result  therefrom;  in  other  words,  the  plaintiff's  cause 
of  action  includes  the  right  to  recover  for  damages  past, 
present,  and  future.  The  law  will  not  tolerate  a  mul- 
tiplicity of  suits,  but  always  compels  a  party  litigating 
to  enforce  his  whole  right  in  a  single  suit,  when  the 
right  is  of  such  a  nature  as  to  render  that  possible; 
therefore  if,  in  a  suit  against  a  physician  for  malprac- 
tice, the  plaintiff  fails,  ignorantly  or  inadvertently, 
to  prove  future  damages,  and  a  judgment  is  entered  in 
his  favor  against  the  physician  for  past  and  present 
damages  only,  such  judgment  will  be  a  complete  bar  to 
another  action  brought  for  the  recovery  of  such  future 
damages.* 

*  Howell  vs.  Goodricb,  69  lU.,  556. 


CHAPTEPt   VIII. 

CEIMINAL   LIABILITY. 

Criminal  Liability  arises  when  Conduct  becomes  a 
Public  Menace. — The  liability  of  the  physician  resulting 
from  the  improper  or  wrongful  exercise  of  the  functions 
of  his  profession  which  has  heretofore  been  the  subject 
of  examination  is  that  of  a  civil  nature,  wliich  is  satis- 
fied by  the  payment  of  an  adequate  compensation  to 
the  particular  patient  who  was  thereby  injured.  Usu- 
ally in  such  cases  of  nonfeasance  or  malfeasance,  the 
injury  produced  and  the  resulting  right  of  prosecution 
is  a  matter  affecting  only  the  immediate  parties  to  the 
transaction — viz.,  the  physician  and  the  patient — and  is 
one  in  which  third  parties  generally,  or,  in  other  words, 
the  public  or  State,  have  no  concern  whatever.  It  is  evi- 
dent, however,  that  there  may  be  cases  in  which  the  act 
complained  of  is  so  grossly  unprofessional  as  not  only 
to  cause  an  injury  to  the  patient  for  which  he  is  en- 
titled to  compensatory  damages  but  to  amount  as  well 
to  a  serious  menace  to  the  peace  and  safety  of  the  pub- 
lic. Such  an  act  will,  in  addition  to  the  civil  liability 
heretofore  considered,  give  rise  to  another  and  more 

385 


386    THE  LAW  m  ITS  RELATIONS  TO  PHYSICIANS. 

important  liability  in^  favor  of  the  public  or  the  State, 
known  as  a  criminal  liability. 

Common  Law  and  Statutes  Regulate  the  Subject. — 
Our  criminal  law,  like  our  law  relative  to  civil  matters, 
came  from  England  as  a  part  of  the  common  law.  To 
this  many  alterations  and  additions  have  been  made  in 
the  several  States  by  statutes,  and  in  some  few  jurisdic- 
tions the  common  law  relative  to  criminal  matters  is  so 
abrogated  by  statutes  that  only  those  acts  are  considered 
as  criminal  which  their  legislatures  have  expressly  de- 
clared so  to  be.* 

The  criminal  law  in  its  relation  to  the  practice  of 
medicine  is  in  its  nature  very  largely  statutory,  and 
differs  in  detail  in  the  several  jurisdictions;  yet  as  a 
whole  it  is  sufficiently  uniform  to  render  practicable  a 
general  treatment  of  the  subject  applicable  to  the  sev- 
eral States. 

Criminal  Intent  Presumed. — The  civil  liability  of  the 
physician,  it  has  been  observed,  is  based  upon  his  failure 
to  possess  ordinary  knowledge,  or  to  exercise  the  usual  or 
proper  degree  of  care  and  diligence  in  applying  the  same. 
Such  an  act  ordinarily  lacks  the  essential  element  of  a 
crime — viz.,  malice  or  a  criminal  intent — and  can,  there- 
fore, be  considered  only  in  the  light  of  a  civil  injury 
affecting  the  individual  patient.    That  malice  or  crimi- 

*  This  is  the  condition  in  the  States  of  Iowa,  Kansas,  and  Ohio. 


CRIMINAL  LIABILITY.  387 

nal  intent  need  not  always  be  shown  to  exist,  but  may 
be  implied  from  the  character  of  the  acts  complained  of, 
is,  however,  a  well-recognized  principle  of  the  law,  it 
being  held  that  one  is  presumed  to  contemplate  the 
natural  consequences  of  his  acts,  and,  if  these  conse- 
quences are  so  disastrous  or  so  fatal  as  to  justify  a 
presumption  of  malicious  intent,  the  act  will  be  deemed 
criminal  even  though  it  is  in  fact  the  result  only  of 
negligent  or  reckless  conduct. 

Gross  Ignorance  and  Reckless  Negligence;  English 
Doctrine. — Whether  or  not  the  ignorance  of  a  physician 
may  be  so  gross,  or  his  conduct  so  grossly  and  recklessly 
negligent,  as  to  render  him  guilty  of  homicide  where  the 
patient  dies  from  his  maltreatment  is  a  question  that 
has  been  several  times  before  the  English  and  American 
courts.  The  doctrine  established  by  the  English  courts 
seems  to  be  that  if  the  ignorance  or  the  neglect  is  gross, 
then  the  criminal  intent  will  be  implied.  Chief -Justice 
Parker  says :  "  I  call  it  acting  wickedly  when  a  man  is 
grossly  ignorant,  and  yet  affects  to  cure  people,  or  when 
he  is  grossly  inattentive  to  their  safety."  *  Some  light 
is  thrown  upon  the  question  of  what  degree  of  ignorance 
or  what  amount  of  negligence  an  English  court  consid- 
ers gross  by  the  words  of  Justice  Miller,  who  says :  "  If  a 
man  Imew  that  he  was  using  medicine  beyond  his  Icnowl- 

*  Eex  vs.  Long,  4  Car.  and  P.,  410. 


388    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS, 

edge,  and  was  meddling  with  things  above  his  reach, 
that  was  culpable  rashness.  Negligence  might  consist 
in  using  medicines  in  the  use  of  which  care  was  required, 
and  of  the  properties  of  which  the  person  using  them 
was  ignorant.  A  person  who  so  took  a  leap  in  the  dark 
in  the  administration  of  medicine  was  guilty  of  gross 
negligence.''  * 

Early  American  Policy. — The  policy  of  the  Ameri- 
can courts,  as  manifested  in  the  earlier  cases,  was  that 
of  much  greater  leniency,  their  policy  being  to  hold 
the  defendant  guilty  only  when  an  evil  or  mischievous 
intent  could  be  shown.  In  more  recent  cases,  however, 
our  courts  have  followed  the  English  precedents,  and,  it 
is  thought  probable,  will  continue  to  do  st),  this  doctrine 
being  more  in  accord  with  the  ever  advancing  spirit 
of  medical  and  surgical  science  and  better  calculated 
to  relieve  the  medical  fraternity  of  those  quacks  and 
charlatans  whose  presence  is  a  reproach  upon  the  pro- 
fession. 

The  earliest  American  case  of  any  importance,  and 
one  which  is  doubly  interesting  because  it  not  only  illus- 
trates the  policy  applied  by  our  courts  for  over  half  a 
century,  but  also  throws  light  upon  the  source  of  a  sys- 
tem or  school  of  medicine  which  enjoyed  more  or  less 
patronage  in  this  country  for  a  number  of  years,  is  that 

*  Reg.  vs.  Markus,  4  F.  and  F.,  356. 


CRIMINAL  LIABILITY.  389 

of  Commonwealth  vs.  Thompson.*  In  this  ease,  which 
was  tried  in  1809,  Dr.  Samuel  Thompson,  founder  of 
the  Thompsonian  system  of  medicine,  sometimes  re- 
ferred to  as  the  botanical  system  or  steam  system,  was 
tried  for  murder.  The  report  of  the  case,  it  is  thought, 
presents  matter  of  sufficient  interest  to  the  medical 
profession  to  justify  a  liberal  extract  therefrom. 

"  On  the  trial  it  appeared  in  evidence  that  the  pris- 
oner, some  time  in  the  preceding  December,  came  into 
Beverly,  where  the  deceased  then  lived,  announced  him- 
self as  a  physician,  and  professed  ability  to  cure  all 
fevers,  whether  black,  gray,  green,  or  yellow;  declaring 
that  the  country  was  much  imposed  upon  by  physicians, 
who  were  all  wrong,  if  he  was  right.  He  possessed 
several  drugs,  which  he  used  as  medicines,  and  to  which 
he  gave  singular  names.  One  he  called  coffee;  another, 
well-my- gristle;  and  a  third,  ramcats.  He  had  several 
patients  in  Beverly  and  in  Salem  previous  to  Monday, 
the  2d  of  January,  when  the  deceased,  having  been  for 
several  days  confined  to  his  house  by  a  cold,  requested 
that  the  prisoner  might  be  sent  for  as  a  physician. 

"  He  accordingly  came  and  ordered  a  large  fire  to  be 
kindled  to  heat  the  room.  He  then  placed  the  feet  of 
the  deceased,  with  his  shoes  off,  on  a  stove  of  hot  coals 
and  wrapped  him  in  a  thick  blanket,  covering  his  head, 

*  Commonwealth  vs.  Thompson,  6  Mass.,  134. 


390    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

In  this  situation  he  gave  him  a  powder  in  water  which 
immediately  puked  him.  Three  minutes  after  he  re- 
peated the  dose,  which  in  about  two  minutes  operated 
violently.  He  again  repeated  the  dose,  which  in  a  short 
time  operated  with  more  violence.  These  doses  were 
all  given  within  the  space  of  half  an  hour,  the  patient 
in  the  mean  time  drinking  copiously  of  a  warm  decoc- 
tion, called  by  the  prisoner  his  coffee.  The  deceased, 
after  puking,  in  which  he  brought  up  phlegm  but  no 
food,  was  ordered  to  a  warm  bed,  where  he  lay  in  a 
profuse  sweat  all  night.  Tuesday  morning  the  deceased 
left  his  bed  and  appeared  to  be  comfortable,  complain- 
ing only  of  debility ;  and  in  the  afternoon  he  was  visited 
by  the  prisoner,  who  administered  two  more  of  his 
emetic  powders  in  succession,  which  puked  the  deceased, 
who,  during  the  operation,  drank  of  the  prisoner's  coffee 
and  complained  of  much  distress.  On  Wednesday  morn- 
ing the  prisoner  came  and,  after  causing  the  face  and 
hands  of  the  deceased  to  be  washed  with  rum,  ordered 
him  to  walk  in  the  air,  which  he  did  for  about  fifteen 
minutes.  In  the  afternoon  the  prisoner  gave  him  two 
more  of  his  emetic  powders,  with  draughts  of  his  coffee. 
On  Thursday  the  deceased  appeared  to  be  comfortable, 
but  complained  of  great  debility.  In  the  afternoon 
the  prisoner  caused  him  to  be  again  sweated,  by  placing 
him,  with  another  patient,  over  an  iron  pan,  with  vine- 
gar heated  by  hot  stones  put  into  the  vinegar,  covering 


CRIMINAL  LIABILITY.  391 

them  at  the  same  time  with  blankets.  On  Friday  and 
Saturday  the  prisoner  did  not  visit  the  deceased,  who 
appeared  to  be  comfortable,  although  complaining  of 
increased  debility.  On  Sunday  morning,  the  debility 
increasing,  the  prisoner  was  sent  for,  and  came  in  the 
afternoon,  when  he  administered  another  of  his  emetic 
powders  with  his  coffee,  which  puked  the  deceased,  caus- 
ing him  much  distress.  On  Monday  he  appeared  com- 
fortable, but  with  increasing  weakness,  until  the  even- 
ing, when  the  prisoner  visited  him,  and  administered 
another  of  his  emetic  powders,  and  in  about  twenty  min- 
utes repeated  the  dose.  This  last  dose  did  not  operate. 
The  prisoner  then  administered  pearlash  mixed  with 
water,  and  afterward  repeated  his  emetic  potions.  The 
deceased  appeared  to  be  in  great  distress  and  said  he 
was  dying.  The  prisoner  then  asked  him  how  far  the 
medicine  had  got  down.  The  deceased,  laying  his  hand 
on  his  breast,  answered.  Here ;  on  which  the  prisoner  ob- 
served that  the  medicine  would  soon  get  down  and  un- 
screw his  navel ;  meaning,  as  was  supposed  by  the  hear- 
ers, that  it  would  operate  as  a  cathartic.  Between  nine 
and  ten  o'clock  in  the  evening  the  deceased  lost  his  rea- 
son and  was  seized  with  convulsion  fits,  two  men  being 
required  to  hold  him  in  bed.  After  he  was  thus  seized 
with  convulsions  the  prisoner  got  down  his  throat  one  or 
two  doses  more  of  his  emetic  powders,  and  remarked  to 
the  father  of  the  deceased  that  his  son  had  got  the  hyps 


392    "I'HE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

like  the  devil,  but  that  his  medicine  would  fetch  him 
down;  meaning,  as  the  witness  understood,  would  com- 
pose him.  The  next  morning  the  regular  physicians  of 
the  town  were  sent  for,  but  the  patient  was  so  complete- 
ly exhausted  that  no  relief  could  be  given.  The  con- 
vulsions and  the  loss  of  reason  continued,  with  some 
intervals,  until  Tuesday  evening,  when  the  deceased 
expired." 

The  evidence  showed  that  the  "  coffee  "  was  a  decoc- 
tion of  marsh  rosemary  mixed  with  the  bark  of  the  bay- 
berry  bush,  which  was  not  supposed  to  have  injured  de- 
ceased. The  emetic  powder,  upon  which  the  prisoner 
said  he  chiefly  relied  in  his  practice,  and  which  was  so 
frequently  administered  to  deceased,  was  the  pulverized 
plant  commonly  known  as  Indian  tobacco,  or  the  Lo- 
belia inflata  of  Linngeus. 

The  prisoner  in  this  case  had  been  indicted  for  mur- 
der, but  under  the  practice  the  jury  could  have  found 
him  guilty  of  manslaughter  had  they  determined  that 
the  offense  amounted  to  that  crime  only. 

The  court  instructed  the  jury  that  to  constitute  the 
crime  of  murder  the  killing  must  have  been  with  mal- 
ice, either  express  or  implied;  that  there  was  no  ex- 
press malice,  and  that  they  could  not  infer  malice 
without  being  satisfied  that  the  prisoner  was  willfully 
regardless  of  his  duty  and  determined  upon  mis- 
chief. 


CRIMINAL  LIABILITY.  393 

Upon  the  question  of  the  prisoner's  guilt  of  the 
crime  of  manslaughter  the  court  laid  down  the  doctrine 
that  the  killing  must  have  been  a  consequence  of  some 
unlawful  act  to  constitute  such  a  crime.  This  doc- 
trine, it  will  be  hereafter  seen,  has  been  distinctly  re- 
pudiated by  the  supreme  court  of  the  same  State  in 
a  recent  decision.  The  court  in  this  case  continued: 
"  'Now,  there  is  no  law  which  prohibits  any  man  from 
prescribing  for  a  sick  person  with  his  consent,  if  he  hon- 
estly intends  to  cure  him  by  his  prescription.  And  it  is 
not  felony  if,  through  his  ignorance  of  the  quality  of 
the  medicine  prescribed,  or  of  the  nature  of  the  disease, 
or  of  both,  the  patient,  contrary  to  his  expectation,  should 
die.  The  death  of  a  man  killed  by  voluntarily  follow- 
ing a  medical  prescription  can  not  be  adjudged  felony 
in  the  party  prescribing,  unless  he,  however  ignorant  of 
medical  science  in  general,  had  so  much  knowledge  or 
probable  information  of  the  fatal  tendency  of  the  pre- 
scription that  it  may  be  reasonably  presumed  by  the 
jury  to  be  the  effect  of  obstinate,  willful  rashness,  at  the 
least,  and  not  of  an  honest  intention  and  expectation 
to  cure."  The  court,  after  observing  that  if  the  evi- 
dence showed  the  administration  of  like  remedies  to 
have  previously  caused  similar  injurious  or  fatal  effects, 
then  the  jury  might  have  found  the  prisoner  guilty  of 
manslaughter,  concluded  its  opinion  as  follows :  "  It  is 
to  be  exceedingly  lamented  that  the  people  are  so  easily 


394   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

persuaded  to  put  confidence  in  these  itinerant  quacks, 
and  to  trust  their  lives  to  strangers  without  knowledge 
or  experience.  If  tliis  astonishing  infatuation  should 
continue,  and  men  are  found  to  yield  to  the  impudent 
pretensions  of  ignorant  empyricism,  there  seems  to  be 
no  adequate  remedy  by  a  criminal  prosecution,  without 
the  interference  of  the  legislature,  if  the  quack,  however 
weak  and  presumptuous,  should  prescribe  with  honest 
intentions  and  expectations  of  relieving  his  patient." 

Following  this  decision  is  one  from  the  supreme 
court  of  Missouri,  decided  in  1844.*  Here  the  prisoner 
was  also  a  botanic  physician.  The  patient,  who  was  to  be 
treated  for  "  sciatica,"  was  in  the  family  way  and  lacked 
about  six  weeks  of  having  completed  the  period  of  ges- 
tation. The  patient's  husband  informed  the  accused 
of  the  patient's  condition  and  told  him  that  he  had  been 
cautioned  against  giving  her  vapor  baths  and  emetics 
while  in  that  condition.  The  accused  declared  his  abil- 
ity to  treat  the  patient  with  perfect  safety,  and  prompt- 
ly began  steaming  and  giving  her  lobelia.  A  few  repeti- 
tions of  this  treatment  brought  on  a  miscarriage,  from 
the  effects  of  which  the  patient  died. 

The  court  applied  the  doctrine  enunciated  in  the 
case  of  Commonwealth  vs.  Thompson,  and  said  that  as 
no  improper  motive  or  knowledge  of  the  fatal  tendency 

*  Rice  vs.  State,  8  Mo.,  561. 


CRIMINAL  LIABILITY.  395 

of  the  treatment  applied  was  shown  the  accused  could 
not  be  held  guilty. 

The  case  of  Honnard  vs.  People  *  presents  a  question 
rather  of  fact  than  of  law.  The  patient,  who  was  five 
months  advanced  in  pregnancy,  was  suffering  from  bil- 
ious fever ;  the  accused  was  attending  -her  and,  as  the 
evidence  shows,  was  extremely  careful  about  giving  her 
strong  medicine,  and  was  in  no  way  responsible  for  her 
miscarriage.  After  the  labor  pains  commenced  the  ac- 
cused was  sent  for.  The  patient's  labor  being  ineffectual, 
the  doctor  undertook  to  remove  the  foetus  by  force.  Of 
the  first  and,  apparently,  only  presentation  he  succeed™ 
ed  in  bringing  away  all  but  the  head.  Having  no  for- 
ceps, he  undertook  to  improvise  a  substitute  by  the  use 
of  two  spoons,  but  whether  he  used  them  to  any  extent 
is  doubtful.  Being  himself  ill,  he  gave  up  his  endeavors 
to  bring  away  the  head  and,  going  away,  sent  another 
doctor.  The  patient  was  then  given  ergot  and,  after 
a  little  time,  the  head  and  another  foetus  besides  came 
away.  The  patient  from  that  time  had  no  physician  for 
about  a  week — ^why,  the  evidence  does  not  show — ^when 
puerperal  fever  set  in,  from  which  she  died  in  about  two 
days.  The  court,  in  considering  the  criminal  liability 
of  the  accused,  said :  "  He  may  not  have  acted  with 
either  the  best  judgment  or  even  ordinary  skill.     But 


*  Honnard  vs.  People,  77  HI.,  481. 
26 


396    THE  LAW  IN  ITS  RELATIONS  TO  PHY&ICIANS. 

no  unprejudiced  person  can  read  the  evidence  without 
being  convinced  that  he  acted  with  good  motives,  and 
the  evidence  wholly  fails  to  show  that  the  puerperal  fe- 
ver, of  which  the  patient  died,  was  caused  by  anything 
done  or  omitted  to  be  done  by  the  accused. 

"  If  physicians  and  surgeons  can  be  convicted  of 
manslaughter,  and  sent  to  the  penitentiary,  upon  such 
evidence  as  this  record  contains,  there  would  be  wit- 
nessed a  frightful  devastation  of  their  ranks.  .  .  . 
There  is  wanting  in  this  case  every  element  of  the  crime 
of  manslaughter,  but  that  of  the  mere  death  of  a  human 
•being." 

In  the  ease  of  State  vs.  Schulz,*  in  which  the  ac- 
cused professed  to  be  a  Baunscheidtist,  the  evidence 
showed  that  the  accused  treated  the  deceased  by  using 
an  instrument  consisting  of  fine  teeth  or  needles  all  over 
her  body  and  applying  oil ;  he  also  gave  eight  drops  of 
the  oil  internally  as  a  cathartic.  In  regard  to  the  oil, 
the  accused  testified :  "  Do  not  know  what  the  oleum 
Baunscheidtii  is  made  of ;  it  is  a  secret  of  the  inventor." 

Upon  the  trial  the  court  instructed  the  jury  that 
"  a  party,  whether  he  be  a  physician  or  specialist,  has  no 
right  to  hold  himself  out  to  the  public  as  competent  to 
treat  diseases,  and  induce  the  public  to  employ  him,  un- 
less he  knows  what  the  medicine  is  he  uses,  and  its  rea- 

*  State  vs.  Schulz,  55  la.,  628. 


CRIMINAL  LIABILITY.  397 

sonable  effect  upon  the  human  system ;  and  to  do  so,  and 
administer  internally  poisonous  medicines  in  sufficient 
quantities  to  ordinarily  produce  death,  and  death  is  pro- 
duced thereby,  he  would  be  guilty  of  murder.  And  if  the 
defendant  in  this  case,  through  gross  ignorance  of  the 
medicine  used,  or  its  reasonable  effect  upon  the  deceased 
as  she  was  at  the  time,  caused  her  death  by  an  overdose 
of  poisonous  medicine,  he  would  be  guilty  as  charged." 

The  supreme  court,  in  reviewing  the  case,  held  that 
this  instruction  was  not  the  law,  and  that  the  physician 
could  not  be  held  guilty  unless  in  prescribing  and  treat- 
ing the  patient  he  had  so  much  knowledge  of  the  fatal 
tendency  of  the  prescription  that  it  might  be  reasonably 
presumed  that  he  administered  the  medicine  from  an 
obstinate,  willful  rashness,  and  not  with  an  honest  inten- 
tion and  expectation  of  effecting  a  cure.  Thus  follow- 
ing, it  will  be  observed,  the  cases  of  Commonwealth  vs. 
Thompson  and  Kice  vs.  State. 

Present  American  Policy. — Upon  the  other  hand,  a 
disposition  to  follow  the  English  doctrine  and  hold  the 
profession  to  a  more  strict  criminal  accountability  was 
first  manifested  by  the  supreme  court  of  Arkansas  in 
1883.* 

Here  the  question  arose  upon  a  point  of  law  as  to  the 
sufficiency  of  the  facts  alleged  in  the  indictment.    These 

*  St::te  vs.  Hardister  and  Brown,  38  Ark.,  605. 


398    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

facts  alleged  in  brief  were  that  the  accused  unnecessarily 
administered  to  the  patient,  who  was  undergoing  pains 
of  childbirth,  a  large  quantity  of  morphine,  by  reason 
of  which  the  labor  pains  were  retarded ;  that  he  then  ad- 
ministered to  her  large  and  excessive  quantities  of  fluid 
extract  of  ergot,  by  reason  of  which  she  had  convulsions, 
and  that  he  then  bled  the  patient  in  the  arm.  That 
he  then  improperly  and  carelessly  attempted  to  deliver 
the  child  with  forceps.  That  he  then  improperly  and 
carelessly  administered  excessive  quantities  of  chloro- 
form, and  then,  improperly,  etc.,  punctured  the  head 
of  the  child  with  a  pocket  knife,  unnecessarily  killing 
it ;  that  he  inserted  his  finger  in  the  mouth  of  the  child 
and  forced  its  head  out  of  the  mouth  of  the  vagina, 
then  tied  a  rope  around  its  neck,  and  with  force  and 
violence,  and  without  due  caution,  delivered  the  child; 
and  that  without  delivering  the  afterbirth  he  aban- 
doned the  patient,  from  the  effects  of  which  she  died  in 
about  six  days. 

The  court,  after  reviewing  all  the  principal  authori- 
ties, English  and  American,  said :  "  The  court  is  of  the 
opinion  that  the  indictment  in  this  case  is  sufficient. 
Whether  the  appellees  are  criminally  responsible  for 
the  death  of  Mrs.  S must  depend  upon  the  evi- 
dence. A  felonious  want  of  due  care  and  circum- 
spection in  her  treatment  must  be  proved  as  alleged. 
For  a  mere  mistake  of  judgment  in  the  selection  and 


CRIMINAL  LIABILITY.  399 

application  of  the  remedies  and  appliances  named  in 
the  indictment,  they  would  not  be  criminally  liable. 
Were  they  grossly  ignorant  of  the  art  which  they  as- 
sumed to  practise  ?  Did  they  manifest  gross  ignorance 
in  the  selection  or  application  of  the  remedies?  Were 
the  remedies  unusual,  inapplicable,  or  rashly  applied? 
Were  appellees  grossly  negligent  or  inattentive  ?  These 
are  all  questions  of  evidence." 

The  next  case  in  point  of  time  seems  to  be  that  of 
Commonwealth  vs.  Pierce,*  passed  upon  by  the  same 
court  that  decided  the  case  of  Commonwealth  vs. 
Thompson,  but  with  quite  a  different  result.  Here 
the  physician  caused  the  patient  to  be  wrapped  in 
flannels  saturated  with  kerosene  for  three  days,  from 
which  her  flesh  became  so  burned  and  blistered  that 
she  died. 

The  counsel  for  the  accused  urged  that  if  he  made 
the  prescription  with  an  honest  purpose  and  intent  to 
cure  the  deceased,  he  was  not  guilty  of  the  offense 
charged,  however  gross  his  ignorance  of  the  quality 
and  tendency  of  the  remedy  prescribed,  or  of  the  na- 
ture of  the  disease,  and  that  to  prove  his  guilt  it  must 
be  shown  that  he  had  so  much  knowledge  or  probable 
information  of  the  fatal  tendency  of  the  prescription 
that  the  death  may  be  reasonably  presumed  to  be  the 

*  Commonwealth  vs.  Pierce,  138  Mass.,  165. 


400    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

effect  of  obstinate,  willful  rashness,  and  not  of  an 
honest  intent  and  expectation  to  cure.  This,  it  will 
be  remembered,  is  the  doctrine  enunciated  by  the  su- 
preme courts  of  Massachusetts  and  Missouri  in  the 
cases  of  Commonwealth  vs.  Thompson  and  Eice  vs. 
State.  The  supreme  court  of  Massachusetts,  however, 
in  the  present  case,  denied  the  correctness  of  this  doc- 
trine and  declared  that  recklessness,  in  the  moral  sense 
of  indifference  as  to  the  result  of  one's  actions,  could  not 
be  applied  as  a  test  of  criminal  responsibility.  That 
in  criminal  matters,  as  in  civil,  there  must  be  an  external 
standard  of  what  would  amount  to  moral  reckless- 
ness in  a  man  of  reasonable  prudence.  That  if  the 
prescriptions  used  were  dangerous,  according  to  com- 
mon experience,  one  who  made  use  of  them  could  not 
escape  responsibility  upon  the  ground  that  he  had  less 
than  the  common  experience.  The  court  said :  "  Com- 
mon experience  is  necessary  to  the  man  of  ordinary 
prudence,  and  a  man  who  assumes  to  act  as  the  de- 
fendant did  must  have  it  at  his  peril.  When  the 
jury  are  asked  whether  a  stick  of  a  certain  size  is 
a  deadly  weapon,  they  are  not  asked  further  whether 
the  defendant  knew  it  was  so.  It  is  enough  that  he 
used  and  saw  it  such  as  it  was," 

The  principles  laid  down  in  this  case  have  been 
followed  in  the  late  case  of  State  vs.  Gile,*  and  it  is 

*  State  vs.  Gile,  8  Wash.,  12;  35  Pac.  Rep.,  Ul. 


CRIMINAL  LIABILITY.  401 

believed  will  be  recognized  by  other  courts  as  the  cor- 
rect law. 

Guilt  to  be  Determined  by  Jury. — In  determining 
whether  or  not,  in  a  given  case,  a  physician  has  been 
guilty  of  such  gross  professional  conduct  as  to  render 
him  criminally  liable,  the  question  is  one  of  fact  which 
it  is  the  defendant's  constitutional  right  to  have  sub- 
mitted to  a  jury  for  determination.*  The  jury,  in 
arriving  at  their  conclusion,  are  not  to  be  governed  by 
the  usual  test  applicable  in  civil  matters,  and  find  the 
accused  guilty  because  a  preponderance  of  the  evidence 
submitted  shows  guilt,  but  they  must,  before  convict- 
ing, find  the  evidence  showing  guilt,  to  be  so  strong  as 
to  exclude  all  reasonable  doubt  of  innocence.  Such 
a  doubt  must,  however,  be  one  founded  upon  the  cir- 
cumstances and  evidence,  and  not  a  doubt  resting  upon 
mere  conjecture  or  speculation,  f  This  is  the  test  ap- 
plicable in  all  criminal  matters. 

Intoxication  of  Physician. — The  fact  that  the  fatal 
treatment  may  have  been  superinduced  by  drunken- 
ness, or  that  the  physician  may  have  been  in  an  in- 
toxicated condition  while  rendering  the  services  that 
resulted  in  the  patient's  death,  would  at  common  law 
be  a  circumstance  for  the  Jury  to  take  into  considera- 
tion in  determining  whether  the  defendant  had  been 

*  Ex  parte  Wong  You  Ting,  106  Cal.,  296,  39  Pac.  Rep.,  62Y. 
f  U.  S.  vs.  Knowles,  4  Saw.,  621. 


402    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

gnilty  of  grossly  improper  conduct.  The  legislatures 
of  several  States  have,  however,  expressly  provided  that 
a  physician  who  administers  while  intoxicated  a  poison- 
ous drug  or  medicine  which  results  in  death  shall  be  held 
guilty  of  manslaughter,  and  many  of  the  States  have 
passed  laws  making  it  a  misdemeanor  for  one  to  prac- 
tise as  a  physician  while  intoxicated.* 

No  Right  to  Terminate  Life. — The  question  of 
whether  or  not  the  physician  ever  has  the  right  to 
terminate  life,  either  that  of  a  patient  hopelessly  ill 
and  suffering  intense  agony,  or  that  of  a  newly  born 
monstrosity,  has  been  very  interestingly  discussed, 
rather  from  an  ethical  than  from  a  legal  standpoint, 
before  the  Medico-Legal  Society. f  Legally  speaking,  no 
such  right  exists. 

Obtaining  Money  under  False  Pretense. — Similar 
to  the  civil  liability  resulting  from  deceit  is  the  crimi- 
nal liability  from  obtaining  money  under  false  pre- 
tense. An  interesting  case  of  this  sort  was  recently 
passed  upon  by  the  court  of  appeals  of  Maryland. 
Here  the  complaining  witness  called  upon  the  defend- 
ant for  medical  treatment.     The  details  of  the  inter- 

*  Such  acta  have  been  passed  in  the  States  of  California,  Idaho, 
Michigan,  Minnesota,  Montana,  Nebraska,  New  Mexico,  New  Yorlc,  North 
Dakota,  Ohio,  Oregon,  South  Dakota,  Utah,  Washington,  Wisconsin,  and 
Wyoming. 

f  An  interesting  paper  on  the  subject,  by  Clark  Bell,  Esq.,  may  be 
found  in  vol.  Iv,  Albany  Law  Journal,  p.  136. 


CRIMINAL   LIABILITY.  403 

view  are  perhaps  best  told  in  the  words  of  the  witness, 
which  were  as  follows :  "  The  professor  offered  me 
paper  and  told  me  to  write  my  name  and  age  upon 
it,  and  not  let  him  see  what  I  wrote.  I  wrote  my 
name  and  age  upon  the  paper,  and  he  walked  up  and 
down  the  room  and  looked  out  of  the  window,  and  took 
the  paper  and  folded  it  up,  and  placed  it  against  his 
forehead,  and  then  told  me  what  I  had  written  on  the 
paper.  He  said,  '  You  suffer  from  stomach  trouble,  and 
I  can  and  will  cure  you  within  six  weeks;  if  not,  I 
will  return  you  your  money/  I  asked  him  when  I 
should  call  again,  and  he  said,  '  Don't  come ;  I  will  come 
and  see  you  and  work  on  you  for  hours,  and  after 
that  you  will  be  well.'  He  also  gave  me  a  charm  to 
wear.  I  wore  it  around  my  neck  for  one  hour.  He 
said  to  wear  it  was  essential  to  the  treatment.  I  am 
not  over  the  stomach  trouble  yet.  He  never  came  to 
my  house  and  worked  on  me.  I  paid  him  twenty-six 
dollars  and  thirty  cents."  After  this,  and  before  the 
time  fixed  for  curing  the  witness,  the  defendant  left. 

It  will  be  remembered  that  no  expression  of  opin- 
ion or  promise  of  future  events  will  ordinarily  afford 
ground  for  an  action  based  upon  deceit.  Upon  simi- 
lar grounds  it  is  held  that  the  criminal  action  for 
obtaining  money  under  false  pretense  can  not  be  based 
upon  a  promise  of  future  profits  or  benefits.  The 
counsel  for  the  accused  in  the  present  case,  therefore. 


404    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

contended  that  the  accused's  promise  of  future  benefit 
would  not  sustain  such  a  prosecution.  The  court  was, 
however,  of  the  opinion  that  the  essential  part  of  the 
transaction  was  the  accused's  representation  that,  in 
effect,  he  was  then  and  there  possessed  of  supernatural 
power  whereby  he  could  cure  witness.  This  part  of 
the  transaction  was  no  promise  as  to  the  future,  but 
a  positive  assertion  of  a  present  condition,  and  the 
mere  fact  that  a  promise  of  future  benefits  operated 
with  this  representation  as  a  part  of  the  inducement 
under  which  the  witness  parted  with  his  money  would 
not  operate  to  defeat  the  prosecution.  The  prisoner 
was  held  guilty.* 

The  purpose  of  this  chapter  being  to  examine  only 
those  questions  of  criminal  liability  resulting  from  the 
improper  exercise  of  professional  duties  and  the  exer- 
cise of  professional  functions  which  are  in  themselves 
unlawful,  notice  will  not  be  taken  of  those  cases  in 
which  the  physician  has  been  guilty  of  criminal  con- 
duct of  an  ordinary  character,  even  though  committed 
in  the  course  of  his  professional  relations  with  his 
patients. 

Criminal  Abortions. — The  most  prolific  source  of 
criminal  litigation  growing  out  of  the  conduct  of  the 
physician  in  the  exercise  of  the  functions  of  his  pro- 
fession is  the  procurement  of  abortions. 

# 

*  Jules  vs.  State,  85  Md.,  305,  36  Atl.  Rep.,  1027. 


CRIMINAL  LIABILITY.  405 

Abortion  as  a  criminal  act  seems  to  be  of  com- 
paratively recent  origin,  as  neither  the  ancient  law 
writers  nor  the  early  English  statutes  refer  to  it  as 
such.* 

In  many  of  the  States  the  procurement  of  an  abor- 
tion with  the  consent  of  the  mother,  before  the  child 
became  quick,  was  not  at  common  law  considered  a 
criminal  act.f  The  theory  upon  which  the  courts 
arrived  at  this  conclusion  was  that  the  procurement 
of  an  abortion,  when  the  mother  had  given  her  consent 
to  the  operation,  could  be  considered  a  wrong  as 
against  the  child  only.  According  to  Blackstone,  life 
begins,  in  contemplation  of  law,  as  soon  as  the  infant  is 
able  to  stir  in  the  mother's  womb;  therefore,  prior  to 
this  period  the  law  did  not,  at  least  for  the  purposes 
of  the  present  inquiry,  recognize  the  child  as  in  esse 
and  capable  of  being  the  object  of  a  criminal  in- 
tent or  act.;];  The  early  statutes  in  several  of  our 
States  apparently  recognized  this  distinction  in 
providing  that  the  killing  of  an  unborn  "  quick '' 
child  should  constitute  the  crime  of  manslaugh- 
ter, etc. 

This  distinction  is,  however,  forcibly  repudiated  by 


*  Archbold's  Crim.  Pr.  and  PI.,  Pomeroy's  ed.,  vol.  i,  951. 
\  This  was  held  to  be  the  law  in  Iowa,  Kentucky,  Maine,  Massa- 
chusetts, Michigan,  MisFouri,  and  New  Jersey. 
^:  State  vs.  Cooper,  22  N.  J.  Law,  52. 


406    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  Pennsylvania  courts  in  the  case  of  Mills  vs.  Com- 
monwealth,* wherein  the  court,  in  reference  to  the  con- 
tention that  the  absence  of  an  allegation  that  the 
mother  was  quick,  rendered  the  indictment  defective, 
said :  "  Although  it  has  been  so  held  in  Massachusetts 
and  in  some  other  States,  it  is  not,  I  apprehend,  the 
law  in  Pennsylvania,  and  never  ought  to  have  been  the 
law  anywhere.  It  is  not  the  murder  of  a  living  child 
which  constitutes  the  offense,  but  the  destruction  of 
gestation  by  wicked  means  and  against  Nature.  The 
moment  the  womb  is  instinct  with  embryo  life  and 
gestation  has  begun,  the  crime  may  be  perpetrated." 
This  case  was  followed  as  a  precedent  by  the  supreme 
court  of  North  Carolina,  f 

Notwithstanding  the  fact  that  it  was  at  common 
law  not  generally  considered  criminal  to  commit  an 
abortion  upon  a  woman,  with  her  consent,  before  the 
child  quickened,  yet  if  one  performed  such  an  act  and 
the  death  of  the  mother  ensued  he  was  held  guilty  of 
murder.  This  was  upon  the  ground  that  the  act  was 
without  lawful  purpose  and  dangerous  to  life,  and  that 
the  consent  of  the  mother  could  not  take  away  the 
imputation  of  malice  or  criminal  intent. | 


*  Mills  vs.  Commonwealth,  13  Pa.  St.,  633. 
+  State  vs.  Slagle,  83  N.  Car.,  630. 

X  Commonwealth  vs.  Parker,  50  Mass.,  263 ;  Smith  vs.  State,  33 
Me.,  48. 


CRIMINAL  LIABILITY.  407 

It  seems  that  at  common  law  an  abortion,  when 
committed  with  the  mother's  consent,  and  after  quick- 
ening, was  not  a  crime,  but  only  a  misdemeanor,  which 
could  not  be  punished  by  imprisonment  in  the  State 
prison.* 

This  question  is  now  regulated  by  statutes  in  the 
several  States  which  specify  what  acts  shall  be  con- 
sidered tantamount  to  the  crime  in  consideration  and 
provide  penalties  for  their  violation,  f  These  statutes 
in  most  States  now  fail  to  draw  any  distinction  be- 
tween the  commission  of  the  offense  or  attempt  at 
commission  before  and  after  the  quickening  of  the 
child,  making  it  a  felony  in  either  case.  The  statutes 
of  some  States,  however,  preserve  the  distinction  by 
providing  a  more  severe  punishment  when  the  act  or 
attempt  is  committed  after  quickening. 

A  detailed  examination  of  the  statutes  of  the  sev- 
eral States  would  require  a  greater  space  than  can  here 
be  devoted  to  that  purpose ;  we  will  therefore  pass  over 
the  subject  with  a  general  statement  of  the  most  usual 
provisions  contained  in  such  statutes,  which  are  that 
any  person  who  shall  administer  to  any  pregnant 
woman  any  medicine,  drug,  or  noxious  thing,  or 
who   shall  use   or   employ   any   instrument   or   other 

*  Evans  vs.  People,  49  N.  Y.,  86 ;  Holliday  vs.  People,  9  111.,  111. 
\  The  matter  in  Kentucky  seems  to  be  without  statutory  regula- 
tion. 


408    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

means  with  intent  to  produce  a  miscarriage,  unless 
the  same  shall  be  necessary  to  preserve  her  life,  shall 
be  guilty  of  a  felony. 

Some  States  provide  that  the  performing  or  at- 
tempting to  perform  an  abortion  shall  be  a  misde- 
meanor, and  that  in  case  death  results  from  the  act 
the  party  performing  the  same  shall  be  guilty  of  man- 
slaughter. The  effect  of  such  statutes  is,  however, 
simply  to  reduce  the  crime  of  performing  or  attempt- 
ing to  perform  an  abortion  from  that  of  a  felony  to 
a  misdemeanor,  for  the  provision  that  the  party  per- 
forming the  operation  shall  be  guilty  of  manslaughter 
when  death  ensues  does  not  in  any  material  respect 
alter  the  common  law.  The  common  law  upon  this 
subject  seems  to  be  that  where  one  attempts  to  cause 
an  abortion  in  a  way  not  to  inflict  serious  injury  upon 
the  mother,  and  the  mother  dies  from  negligence  in  the 
operation,  there  being  no  intent  to  kill  her,  or  to 
inflict  serious  injury,  and  no  likelihood  of  such  result, 
the  offense  is  manslaughter;  if,  however,  the  act  is 
one  from  which  death  or  great  injury  would  be  likely 
to  result,  or  if  it  were  performed  with  intent  to  pro- 
duce death  or  grievous  injury,  then  the  offense  is 
murder.* 

The  liability  of  the  mother  for  causing  herself  to 

*  Wharton's  Crim.  L.,  §  325. 


CRIMINAL   LIABILITY.  409 

miscarry,  it  seems  at  common  law  was  regarded  much 
the  same  as  that  of  a  third  person.  If  she  committed 
the  abortion  before  the  child  had  quickened  she  was 
not  guilty  of  a  crime,  but  if  after  quickening  she  was 
considered  guilty.  The  statutes  of  the  several  States 
making  it  a  crime  for  any  person  to  administer  to 
any  pregnant  woman  any  drug,  etc.,  for  the  purpose 
of  unlawfully  producing  an  abortion,  are  construed 
as  applying  to  third  parties  who  commit  such  acts, 
but  not  as  incriminating  the  mother  who  performs 
an  abortion  upon  herself.*  Nor  was  the  submission 
of  the  mother  at  common  law  to  the  act  of  another 
in  producing  an  abortion  upon  her  held  to  render  her 
an  accomplice  in  the  commission  of  the  crime.  She 
was  looked  upon  rather  as  a  victim  of  the  act  than 
as  a  particeps  criminis.\ 

Statutes  have,  however,  been  enacted  in  some  States 
making  it  a  criminal  offense  for  the  mother  to  take 
any  medicine  or  use  or  submit  to  the  use  of  any  in- 
strument for  the  purpose  of  procuring  her  own  mis- 
carriage. Such  a  statute,  it  will  be  seen,  entirely  super- 
sedes and  alters  the  common  law.;]; 

*  Smith  va.  Safford,  31  Ala.,  45;  Hatfield  vs.  Gano,  15  Iowa,  111. 

f  Dunn  vs.  People,  29  N.  Y.,  523;  Com.  vs.  "Wood,  11  Gray 
(Mass.),  85. 

\  Such  laws  exist  in  California,  Connecticut,  Idaho,  Indiana,  Minne- 
sota, Montana,  North  Dakota,  New  York,  South  Carolina,  South  Dakota, 
Utah,  and  Wisconsin. 


410    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Advice  to  Produce  an  Abortion. — The  mere  solici- 
tation or  advice  given  to  a  pregnant  vt^oman  that  she 
take  medicine  or  adopt  means  to  produce  a  miscar- 
riage does  not  constitute  a  crime  unless  the  solicita- 
tion or  advice  is  acted  upon.  In  the  case  of  Lamb  vs. 
State,*  the  act  upon  which  the  prosecution  was  based 
was  the  solicitation  of  a  pregnant  woman  to  take  cer- 
tain drugs  for  the  purpose  of  causing  an  abortion,  but 
it  was  not  shown  that  the  woman  did  take  the  drugs. 
In  this  case,  after  observing  that  tlae  act  complained 
of  was  not  included  in  the  terms  of  the  statute,  the 
court  said :  ''  It  may  be  urged  that  a  solicitation  is 
an  attempt,  and  that  an  attempt  to  commit  a  mis- 
demeanor is  a  misdemeanor.  Pursuing  the  same  train 
of  inference  and  reasoning,  we  may  go  a  step  farther, 
and  maintain  that  as  the  solicitation  is  a  misdemeanor, 
an  attempt  at  solicitation  would,  by  the  same  rule,  be 
also  a  misdemeanor.  This  process  might  be  indefinitely 
extended,  so  as  to  reach  persons  very  remotely  separated 
from  the  act  which  the  statute  intended  to  punish.  Cer- 
tainly it  would  be  a  great  calamity  to  invent  crimes  by 
subtle,  ingenious,  and  astute  deduction.  In  all  free 
countries  the  criminal  law  ought  to  be  plain,  perspicu- 
ous, and  easily  apprehended  by  the  common  intelligence 
of  the  community.     It  is  the  essence  of  cruelty  and 

*  Lamb  vs.  State,  67  Md.,  624,  10  All.  Rep.,  208. 


CRIMINAL  LIABILITY.  411 

injustice  to  punish  men  for  acts  which  can  be  con- 
strued to  be  crimes  only  by  the  application  of  artificial 
principles  according  to  a  mode  of  disquisition  unknown 
in  the  ordinary  business  and  pursuits  of  life." 

A  more  recent  and  a  stronger  case  than  the  above 
was  decided  by  the  New  York  court  of  appeals  in  1892.* 
Here  the  crime  was  charged  as  having  been  committed 
by  advising  a  pregnant  woman  to  take  a  medicine, 
drug,  or  substance,  and  to  use  means  to  procure  a  mis- 
carriage; but  it  was  not  shown  that  the  advice  was 
acted  upon.  The  statute  under  which  the  defendant 
was  prosecuted  provided  that  "  a  person  who,  with 
intent  thereby  to  procure  the  miscarriage  of  a  woman, 
unless  the  same  is  necessary  to  preserve  the  life  of 
the  woman,  .  .  .  advises  or  causes  a  woman  to  take 
any  medicine,  drug,  or  substance,  ...  is  guilty  of 
abortion,  and  is  punishable,  etc."  The  court  said :  "  It 
would  be  a  very  strict  and  literal,  if  not  extraordinary, 
construction  of  this  section  to  hold  that  proof  of  mere 
suggestion  or  advice,  without  evidence  of  its  being  acted 
upon,  could  convict  a  man."  The  court,  in  discussing 
the  question  further,  after  observing  that  it  would 
be  competent  for  the  legislature  to  impose  a  penalty 
for  mere  giving  advice  to  a  woman  to  take  a  medicine 
to  produce  an  abortion,  irrespective  of  its  being  acted 


*  People  vs.  Phelps,  133  N.  Y.,  267;  30  N.  E.  Rep.,  1012. 

27 


412    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

upon,  said :  "  For  the  man  to  be  '  guilty  of  abortion ' 
within  the  provisions  of  this  chapter,  who  has  advised 
the  woman  to  take  a  drug,  it  is  necessarily  and  logic- 
ally to  be  implied  that  his  advice  should  have  been 
followed  by  the  act.  Otherwise  we  should  have  to  draw 
the  apparently  absurd  conclusion  that  the  legislature 
intended  that  abortion  could  be  committed  or  caused 
by  the  act  of  offering  advice." 

Intent,  Bather  than  Efficacy  of  Means  Employed, 
Governs. — In  one  of  the  first  English  statutes  *  en- 
acted for  the  purpose  of  preventing  the  procurement 
of  abortions,  the  expression  "  any  poison  or  other 
noxious  thing  "  was  made  use  of  in  describing  an  un- 
lawful means  of  performing  the  forbidden  act.  This 
expression  has  been  reenacted  in  the  statutes  of  many 
of  our  States,  and  is  judicially  defined  as  being  any 
drug,  medicine,  or  other  thing  which  is  hurtful  or 
harmful. 

Under  the  N'ew  Jersey  statute  which  makes  it  a 
crime  to  administer  any  drug,  poison,  medicine,  or 
noxious  thing  with  intent  to  produce  an  abortion,  the 
court  held  that  it  was  not  necessary  that  the  drug 
or  medicine  used  should  accomplish  the  effect  designed, 
or  should  even  be  capable  of  producing  a  miscarriage; 
but  if  it  is  hurtful  and  is  administered,  prescribed,  or 

*  9  Geo.  IV,  c.  31,  §  13, 


CRIMINAL  LIABILITY.  413 

advised  with  the  intent  to  cause  a  miscarriage,  the 
crime  is  complete  the  moment  the  medicine  is  taken. 
The  reasoning  of  the  court  in  this  case  is  based  upon 
sound  policy,  and  should  commend  itself  as  correct 
law  whenever  the  question  may  in  the  future  arise. 
Justice  Scudder,  in  assigning  the  reason  for  this  con- 
clusion, said :  "  The  design  of  the  statute  was  not  so 
much  to  prevent  the  procuring  of  abortions,  however 
offensive  these  may  be  to  morals  and  decency,  as  to 
guard  the  health  and  life  of  the  female  against  the 
consequences  of  such  attempts.  ...  It  is  dangerous  to 
the  life  and  health  of  the  mother  and  to  the  existence 
of  the  child  to  experiment  with  any  drug,  medicine, 
or  noxious  thing  to  produce  a  miscarriage.  The  igno- 
rance of  the  operator  may  lead  him  to  select  some- 
thing that  will  not  have  the  effect  he  designs;  but  if 
it  be  noxious  in  any  degree,  though  in  the  judgment 
of  others  who  have  greater  knowledge  it  can  not  pro- 
duce the  effect  intended,  it  is  within  the  statute."  * 

In  a  case  f  similar  to  the  one  above,  and  in  which 
the  law  was  held  substantially  as  there  stated,  the  su- 
preme court  of  Colorado  held  that  the  character  and 
capabilities  of  any  drug  alleged  to  have  been  used  in 
the  procurement  or  attempted  procurement  of  an  abor- 
tion are  questions  of  fact  to  be  determined  by  the  jury 

*  State  vs.  Gedicke,  43  N.  J.  Law,  86. 
I  Dougherty  vs.  the  People,  1  Colo.,  514. 


414   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

upon  the  evidence  before  them.  In  referring  to  the  es- 
sential element  of  the  crime  the  court  said :  "  The  acts 
sought  to  be  prohibited  and  the  crime  sought  to  be  pun- 
ished are  the  using  of  noxious  substances  and  instru- 
ments with  intent  to  produce  miscarriage.  It  is  not  ne- 
cessary that  the  miscarriage  should  take  place — that  is, 
that  the  administering  of  the  drugs  or  the  use  of  the  in- 
strument should  be  followed  by  the  expulsion  of  the 
foetus.  That  is  not  necessary  to  constitute  the  crime.  It 
is  the  administering  the  noxious  substance  or  the  use  of 
the  instruments  with  intent  to  produce  miscarriage 
that  makes  up  the  crime." 

A  recent  case  in  apparent  conflict  with  the  doc- 
trine upon  which  the  preceding  cases  are  based  comes 
from  the  Texas  court  of  appeals.*  A  more  careful 
examination  of  the  case,  however,  shows  that  the  con- 
flict is  only  apparent,  for  the  decision  is  based  upon 
the  wording  of  the  Texas  statute  which  requires  that 
the  means  employed  to  produce  the  abortion  shall  be 
calculated  to  be  efficacious.  Here  the  accused  admin- 
istered cotton-root  tea.  Experts  for  the  State  testi- 
fied that  while  medical  books  said  an  abortion  was 
liable  to  follow  the  administration  of  cotton-root  tea, 
they  knew  nothing  of  it  by  personal  observation,  and 
thought  that  as  administered  to  the  prosecuting  wit- 

*  Williams  vs.  State,  Tex.  App.,  19  S.  W.  Eep.,  89*7. 


CRIMINAL  LIABILITY.  415 

ness  by  the  defendant  it  was  not  calculated  to  pro- 
duce an  abortion. 

Upon  the  question  in  consideration  the  case  of 
Commonwealth  vs.  W.*  is  instructive.  The  statute 
under  which  the  defendant  was  prosecuted  was  as  fol- 
lows :  "  If  any  person,  with  intent  to  procure  the  mis- 
carriage of  any  woman,  shall  unlawfully  administer 
to  her  any  poison,  drug,  or  substance  whatsoever,  or 
shall  unlawfully  use  any  instrument,  or  other  means 
whatsoever,  with  like  intent,  such  person  shall  be 
guilty  of  felony."  The  evidence  in  this  case  tended 
to  show  that  the  defendant  had  been  guilty  of  im- 
proper liberties  with  the  complaining  witness;  that 
shortly  thereafter  her  fears  were  excited  by  an  irregu- 
larity in  her  monthly  courses,  and  that  she  made  this 
known  to  the  defendant.  He  expressed  the  belief  that 
she  had  taken  cold,  and  advised  the  use  of  a  tea,  and 
afterward  brought  her  a  phial  of  iron  tincture,  instruct- 
ing her  to  take  ten  or  fifteen  drops  before  meals  for 
the  purpose  of  strengthening  her.  Professional  evi- 
dence was  given  that  the  iron  could  do  her  no  harm, 
but  on  the  contrary  was  a  benefit  to  her. 

The  court  instructed  the  jury,  in  effect,  that  the 
motive  or  intent  of  the  defendant  in  furnishing  the 
prosecutrix  with  the  iron  should  govern  in  determin- 

*  Com.  vs.  W  ,  3  Pitt?b.  R.,  463. 


416    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ing  his  liability;  that  at  the  time  the  iron  was  given 
there  was  no  certainty  of  pregnancy,  and  that  his 
motive  as  expressed  did  not  indicate  a  criminal  intent ; 
yet  if  they  concluded  from  all  the  circumstances  that 
the  drug  was  administered  with  intent  to  procure  a 
miscarriage,  they  should  find  the  defendant  guilty. 
The  evidence  further  showed  that  the  prosecutrix,  after 
undergoing  violent  and  excessive  exercise,  jumped  from 
a  ladder,  the  effect  of  which  was  to  cause  a  miscar- 
riage. Whether  or  not  this  means,  if  induced  by  the 
defendant,  rendered  him  liable  under  the  statute  was 
a  question  strongly  opposed  by  the  defense,  who  urged 
that  the  words  of  the  statute  defining  the  crime,  "  or 
shall  use  any  instrument  or  other  means  whatsoever," 
imply  some  act  to  be  done  by  the  defendant  and  not 
by  the  woman  herself  under  his  advice.  Upon  this 
question  of  law  the  court  said  to  the  jury :  "  We  have 
given  this  question  some  reflection,  and  our  conclusion 
is,  to  submit  the  case  to  you  upon  the  evidence,  with 
the  instruction  that  the  third  count  (alleging  the  ex- 
cessive exercise  and  jump  as  an  act  induced  by  the 
defendant)  sets  forth  the  offense  within  the  intent  and 
meaning  of  the  act  of  assembly. 

"  We  are  not  prepared  to  adopt  the  view  of  the  law 
presented  by  the  defendant's  counsel,  for  the  reason 
that  such  an  interpretation  would  greatly  abridge  what 
we  conceive  to  be  the  remedial  design  of  the  act,  and 


CRIMINAL  LIABILITY.  417 

to  a  great  extent  frustrate  the  expressed  intention  of 
its  framers.  If  a  person  intent  on  inducing  an  abortion 
must  not  only  prescribe  the  drug,  but  with  his  own 
hand  put  it  to  the  victim's  lips,  or,  after  contriving 
the  mechanical  means,  must  to  moral  constraint  super- 
add physical  force,  we  can  readily  perceive  how  the 
abortionist  may  practise  his  nefarious  schemes  with 
impunity  in  the  very  face  of  the  statute.  Upon  the 
commonwealth's  evidence,  the  case  is  one  of  crimi- 
nal abortion — that  is,  unlawful  means  were  made  use 
of  to  procure  a  miscarriage.  The  defendant,  accord- 
ing to  the  evidence,  contrived  these  means,  and  used 
the  prosecutrix  in  rendering  them  efficacious;  what  she 
did  was  as  much  his  act  as  if  she  had  been  moved  to  it 
by  outward  constraint.  The  means  used  to  produce 
the  abortion,  therefore,  were  used  by  the  defendant 
just  as  much  as  if  he  had  employed  physical  instead 
of  moral  force." 

Upon  the  question  of  fact  to  be  determined  by  the 
jury  the  court  instructed  them  that  they  were  to  con- 
sider carefully  all  the  evidence,  and  from  that  deter- 
mine whether  the  defendant  conceived  the  violent  and 
excessive  exercise  as  a  means  of  producing  a  miscar- 
riage, and  whether  he  induced  her  to  employ  it  with 
intent  on  his  part  of  producing  a  miscarriage. 

The  jury  failed  to  agree  and  were  discharged.  The 
prosecutrix  soon  removed  to  another  State,  and  it  seems 


418    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS.      ' 

was  prevented  from  returning  and  appearing  in  court 
by  declining  health.  A  nolle  prosequi  was  therefore  en- 
tered and  the  defendant  dismissed. 

Pregnancy  not  Necessary  for  Commission  of  the 
Crime;  Statutory  Exceptions. — In  harmony  with  the 
above  decision,  and  probably  based  upon  the  same  rea- 
son— viz.,  that  the  chief  aim  of  the  law  is  to  protect  the 
woman  from  injurious  attempts  to  cause  her  to  mis- 
carry— is  the  rule  that  it  is  not  essential  that  the  woman 
shall,  in  fact,  be  pregnant  when  operated  upon,  in  order 
to  render  the  person  attempting  to  produce  her  miscar- 
riage criminally  liable.*  This  rule  can  not,  of  course, 
exist  where  the  statute  under  which  the  attempted  abor- 
tion is  sought  to  be  punished  expressly  provides  that 
the  woman  shall  be  pregnant;  such  statutes  sometimes 
provide  that  it  shall  be  a  crime  to  produce  or  attempt 
to  produce  an  abortion  upon  a  woman  "  pregnant  with 
child."  In  such  a  case  it  is  an  essential  part  of  the 
crime  that  the  person  upon  whom  the  attempt  has  been 
made  was  in  fact  so  pregnant,  and  if  the  prosecution 
fails  in  showing  this  condition  to  have  existed  the  ac- 
cused can  not  be  convicted  even  though  it  is  clearly 
shown  that  he  has  attempted  to  produce  an  abortion. 
Nor  will  it  make  any  difference  in  the  necessity  of  prov- 


*  Regina  vs.  Goodchild,  2  Car.  and  K.,  292;  Com.  vs.  Taylor,  132 
Mass.,  261. 


CRIMINAL   LIABILITY.  419 

ing  the  pregnancy  that  a  new  law  may  have  been  en- 
acted obviating  this  necessity  by  eliminating  the  words 
'"'  pregnant  with  child/'  after  the  time  of  the  alleged 
attempt  to  perform  an  abortion  and  before  trial,*  it 
being  a  constitutional  guarantee  that  no  person  shall 
be  convicted  of  a  criminal  act  upon  less  evidence  or  evi- 
dence inferior  to  that  which  would  have  been  requisite 
to  a  conviction  at  the  time  the  alleged  criminal  act  was 
committed. 

Vitality  of  Foetus  not  Essential  to  Commission  of 
the  Crime. — It  has  been  contended  that  if  the  foetus  had 
lost  vitality  at  the  time  the  act  intended  to  cause  a  mis- 
carriage was  committed,  this  will  relieve  the  defendant 
of  criminal  liability.  Upon  this  question  we  have  two 
cases  nearly  contemporaneous — one  from  the  supreme 
court  of  Massachusetts,  decided  in  1858,  and  one  from 
the  supreme  court  of  Vermont,  decided  in  1859,  which 
at  first  blush  appear  to  be  in  conflict.  The  Vermont 
case  lays  down  the  rule  squarely  that  where  a  physician 
attempts,  with  unlawful  intent,  to  produce  an  abortion, 
it  is  no  defense  that  it  may  be  subsequently  discovered 
that  the  foetus  had  lost  vitality  previous  to  the  opera- 
tion or  that  the  case  was  one  in  which  it  would  have  been. 
necessary  to  destroy  the  foetus  to  save  the  mother.  If 
the  physician  did  not  know  this  fact  at  the  time  of  treat- 

*  Com.  vs.  Grover,  82  Mass.,  602. 


420    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ing  the  patient  and  attempted  to  produce  the  miscar- 
riage for  other  than  a  lawful  purpose,  he  is  criminally 
liable.*  In  the  Massachusetts  case  f  there  appears  at 
first  glance  to  be  a  more  lenient  application  of  the  law. 
There  the  court  says  that  if  there  had  been  evidence 
that  the  foetus  had  lost  its  vitality,  it  might  have  been 
the  duty  of  the  judge  to  say  directly  to  the  jury  that,  if 
they  so  found,  the  case  was  not  within  the  statute. 
Upon  examining  the  case  more  carefully,  however,  it  is 
apparent  that  the  court  had  in  contemplation  the  effect 
that  would  have  been  produced  by  the  introduction  of 
evidence  on  behalf  of  the  defendant  to  show  the  exist- 
ence of  a  condition  justifying  and  requiring  the  opera- 
tion performed.  In  such  a  case,  it  is  apprehended,  the 
question  of  intent  upon  the  part  of  the  defendant  at  the 
time  he  administered  the  drug  or  performed  the  opera- 
tion would  properly  be  submitted  to  the  jury  for  deter- 
mination, and  that  they  should  properly  find  him  guilty 
or  innocent  accordingly  as  they  determine  his  motive 
and  purpose  to  have  been  to  unlawfully  relieve  the 
mother  of  the  burden  of  bearing  the  child,  or  to  save 
her  from  the  impending  danger.  With  this  interpre- 
tation it  will  be  observed  that  the  Massachusetts  case  is 
in  complete  harmony  with  the  Vermont  case. 


*  State  vs.  Howard,  32  Vt.,  380. 
f  Com.  vs.  Wood,  11  Mass.,  85. 


CRIMINAL  LIABILITY.  421 

Justification  for  Performing. — These  cases  bring  us 
to  an  examination  of  the  question  of  when  a  physician 
is  justified  in  performing  an  abortion.  The  statutes  of 
many  States,  in  making  it  a  crime  to  procure  an  abor- 
tion, expressly  except  those  cases  in  which  the  abor- 
tion may  be  necessary  to  preserve  the  life  of  the  mother, 
or  shall  have  been  advised  by  one  (sometimes  two)  phy- 
sicians to  be  necessary  for  such  purpose.  The  proper 
construction  of  such  an  act  seems  to  be  that  if  the  phy- 
sician operating  believes  the  performance  of  an  abor- 
tion necessary  to  save  the  mother's  life,  and  acts  upon 
this  belief  without  availing  himself  of  counsel  and  ob- 
taining the  advice  of  the  number  of  physicians  named 
in  the  statute  of  his  State  that  such  operation  is  neces- 
sary, he  is  not  exonerated  unless  he  is  correct  in  such 
belief.  But  if  he  calls  in  counsel,  and,  after  proper 
examination,  they  advise  him  that  the  operation  is  ne- 
cessary, he  is  then  justified  in  performing  it,  and  will  be 
held  harmless  whether  his  advice  was  correct  or  not. 
It  is  apprehended  that  the  law  is  substantially  the  same 
in  those  States  having  no  provisions  in  their  statutes  for 
securing  the  advice  of  other  physicians  as  to  the  neces- 
sity of  performing  such  an  operation.  The  fact  that 
the  preservation  of  the  mother's  life  requires  that  a 
miscarriage  be  performed  upon  her  is  always  a  justifica- 
tion for  producing  an  abortion,  whether  the  statute  ex- 
pressly so  provides  or  not;  if,  however,  the  physician 


422    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

performing  the  abortion  assumes  the  responsibility  of 
determining  that  the  operation  is  necessary,  and  acts 
upon  his  own  judgment,  he  will  be  bound  at  his  peril 
to  judge  correctly ;  but  if  he  acts  in  good  faith  in  secur- 
ing a  consultation  he  will  then  be  protected  in  acting 
upon  the  advice  of  the  consultants,  whether^  their  opin- 
ion of  the  patient's  condition  is,  in  fact,  correct  or  not. 
Should  the  physician's  good  faith  in  obtaining  the  con- 
sultation be  questioned,  it  would  then  be  for  the  jury 
to  determine,  from  all  the  attendant  circumstances, 
whether  the  consultation  was  a  mere  sham  and  collusive 
pretense  made  to  give  color  of  legality  to  an  unlawful 
act,  or  was,  in  fact,  an  honest  effort  made  to  deter- 
mine the  patient's  actual  condition  with  a  view  to  ren- 
dering to  her  such  medical  services  as  her  real  needs 
required.  Probably  the  physician's  best  safeguard 
against  an  attack  of  this  sort  is  the  exercise  of  a  wise 
discrimination  in  the  choice  of  consultants,  for  if  a  con- 
sultation is  secured  with  consultants  whose  professional 
integrity  is  irreproachable,  no  imputation  of  bad  faith 
can  be  safely  made,  much  less  maintained. 

The  supreme  court  of  Massachusetts,  in  a  case  be- 
fore them  some  years  ago,*  expressed  their  approval  of 
an  instruction  given  to  the  jury  in  the  trial  court, 
wherein  the  legal  duty  of  the  physician  in  an  emer- 

*  Commonwealth  vs.  Brown,  121  Mass.,  69. 


CRIMINAL  LIABILITY.  423 

gency  of  the  sort  in  contemplation  was  said  to  be  at  a 
much  lower  standard  than  that  above  fixed.  Therein 
the  trial  judge  said :  "  A  physician  may  lawfully  procure 
the  miscarriage  of  a  woman  pregnant  with  child  by  any 
means  applicable  and  reasonable  for  that  purpose,  di- 
rectly or  indirectly,  if  in  so  doing  he  acts  in  good  faith 
for  the  preservation  of  the  life  or  health  of  such  preg- 
nant woman.  The  justification  of  a  physician  thus 
acting  must  depend  upon  his  exercising  his  best  skill 
and  judgment,  and  in  the  honest  belief  that  the  acts 
directly  applied  to  produce  a  miscarriage,  or  applied  to 
the  treatment  of  a  disease  so  as  to  involve  a  miscar- 
riage as  a  not  unusual  incident  of  such  treatment,  are 
necessary  to  save  such  pregnant  woman  from  great 
peril  to  her  life  or  health." 

While  the  standard  upon  which  this  instruction  is 
based  is  the  one  underlying  nearly  the  whole  law  of 
civil  and  criminal  liability,  yet  it  can  not  be  safely 
advised  that  the  courts  will  in  similar  cases  follow  the 
opinion  therein  expressed.  Moreover,  should  this  opin- 
ion be  followed,  the  question  of  fact  to  be  determined  by 
the  jury  of  whether  or  not  the  physician  did  exercise 
"his  best  skill  and  judgment"  and  act  "in  the  honest 
belief  "  that  such  operation  was  necessary,  will  be  a  per- 
ilous one  which  will  be  eliminated  from  all  cases  in 
which  the  physician  observes  the  legal  duties  herein 
first  laid  down. 


424    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

The  necessity  of  destroying  the  child  to  save  the 
mother's  life,  as  contemplated  by  the  statute,  applies 
to  those  cases  only  where  the  death  of  the  mother ' 
can  reasonably  be  anticipated  to  result  from  nat- 
ural causes  unless  the  child  is  destroyed.  For  ex- 
ample, it  is  evidently  not  within  the  meaning  of  the 
statute  that  the  physician's  conduct  in  destroying  the 
child  is  justified  as  necessary  to  save  the  mother's  life 
when  the  only  reason  to  anticipate  the  mother's  death 
from  a  continuation  of  her  condition  of  pregnancy  is 
that  she  has  threatened  to  commit  suicide  if  she  is  not 
operated  upon.*  Nor  is  the  consent  of  the  mother  to 
the  operation,  nor  a  desire  to  screen  her  from  exposure 
and  disgrace,  any  justification  for  the  act.f 

Burden  of  Proving  Existence  or  Non-existence  of 
Necessity  for  Operating. — Whether  it  is  necessary  for 
the  State  to  prove  as  an  essential  feature  of  the  case  of 
the  prosecution  that  an  abortion  was  not  necessary  to 
save  the  life  of  the  mother,  or  whether,  on  the  other 
hand,  this  fact  will  be  presumed  and  the  burden  of  prov- 
ing that  such  operation  was  necessary  to  the  mother's 
safety  devolve  upon  the  defendant,  should  he  desire  to 
make  such  a  defense,  is  a  question  upon  which  the 
courts  are  divided. 

The  general  rule  of  evidence  regulating  the  burden 

*  Hatchard  vs.  State,  19  Wis.,  35*7. 

f  Com.  vs.  Wood,  7*7  Mass.,  85 ;  Com.  vs.  Snow,  116  Mass.,  4Y. 


CRIMINAL  LIABILITY.  425 

of  proof  is  that  the  burden  or  requirement  of  proving 
any  fact  lies  upon  the  party  who  substantially  asserts 
the  affirmative  of  the  issue.  This  rule  is,  however,  sub- 
ject to  a  number  of  well-recognized  exceptions,  among 
which  is  the  rule  that  when  a  statute,  in  creating  or  de- 
fining an  offense,  makes  negative  matter  or  a  negative 
condition  a  material  element  of  the  offense  described, 
then  this  negative  condition  must  be  proved  by  the  party 
enforcing  the  operation  of  the  statute.  That  the  stat- 
utes of  the  several  States  prohibiting  the  production  of 
abortion,  as  usually  worded,  come  within  this  exception, 
seems  evident;  yet  in  apparent  conflict  with  this  rule, 
at  least  in  the  present  case,  is  the  rule  that  where  facts 
are  peculiarly  within  the  knowledge  of  either  party  to  a 
suit  the  burden  is  upon  that  party  to  prove  them. 

The  supreme  court  of  Oregon,  in  a  well-considered 
opinion,  denies  the  application  of  the  last  rule  men- 
tioned to  this  class  of  cases.  The  court,  speaking 
through  Justice  Thayer,  says :  "  The  relative  conven- 
ience of  the  parties  to  make  the  proof  ought  not,  it  seems 
to  me,  to  be  taken  into  consideration ;  but,  in  any  event, 
no  such  rule  should  be  applied  to  a  criminal  case,  where 
the  accused  is  presumed  to  be  innocent,  and  the  prose- 
cution is  required  to  prove  him  guilty  beyond  a  reason- 
able doubt.  .  .  .  Proof  that  a  physician,  in  his  profes- 
sional treatment  of  a  woman  pregnant  with  a  child,  had 
used  means,  with  the  intent  thereby  to  destroy  the  child, 


426    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

and  the  death  of  the  child  was  thereby  produced,  is  not 
evidence  that  the  treatment  was  not  necessary  to  pre- 
serve the  life  of  the  mother;  nor,  if  it  produced  the 
death  of  the  mother,  that  it  was  not  an  honest  effort  on 
the  part  of  the  physician  to  preserve  her  life.  The  ex- 
perience of  mankind  shows  that  cases  have  often  arisen 
in  which  such  treatment  has  necessarily  been  resorted  to, 
and,  in  the  absence  of  other  proof,  the  law,  in  its  benig- 
nity, would  presume  that  it  was  performed  in  good  faith, 
and  for  a  legitimate  purpose.  The  extent  of  proof  to 
establish  the  negative  averment  in  such  a  case  would 
necessarily  be  limited  by  the  circumstances.  It  could 
not,  in  the  nature  of  things,  be  made  positive,  except 
as  aided  by  the  fact  that  the  accused  was  able  to  refute 
it  absolutely,  if  untrue,  and  had  failed  to  attempt  to  do 
so."  *  The  supreme  court  of  Minnesota,  in  examining 
a  question  very  nearly  related  to  this  one,  indicated 
its  disposition  to  hold  the  law  as  above  laid  down,f 
while  the  supreme  court  of  Ohio  very  clearly  expressed 
its  opinion  that  it  was  incumbent  upon  the  State  to 
prove  that  the  producing  of  the  abortion  was  not  "ne- 
cessary to  preserve  the  life  of  such  mother."  The 
ground,  however,  upon  which  this  court  arrived  at  this 
conclusion  was  that  the  facts  showinsr  whether  or  not  it 


*  State  vs.  Clement?,  15  Ore ,  2^1,  U  Pac.  Rep.,  410. 
f  State  vs.  Mclntvre,  19  Minn.,  93. 


CRIMmAL  LIABILITY.  427 

was  necessary  to  perform  the  abortion  to  save  the  moth- 
er's life  were  not  peculiarly  within  the  knowledge  of  the 
defendant.  Upon  this  point  the  court,  speaking 
through  Chief-Justice  Day,  said :  "  The  circumstances 
attending  the  procurement  of  an  abortion,  tending  to 
prove  that  it  was  unnecessary  for  the  purpose  of  pre- 
serving the  life  of  the  mother,  ordinarily  can  be  shown 
quite  as  easily  upon  the  part  of  the  prosecution  as  it 
can  be  proved  by  the  defendant  that  it  was  necessary  for 
that  purpose."  The  negative  of  the  fact  that  the  abor- 
tion was  advised  by  two  physicians,  the  court  holds, 
for  a  like  reason,  is  not  necessary  to  be  proved  by  the 
State.  Here  the  fact  that  the  physician  obtained  the 
advice  of  two  physicians  of  the  necessity  of  the  opera- 
tion, if  indeed  he  did,  is  one  which  is  peculiarly  within 
his  knowledge  and  one  of  which  it  might  be  impossible 
for  the  State  to  prove  the  negative.* 

Upon  the  other  hand,  it  is  held  in  several  well-con- 
sidered cases  that  it  is  not  incumbent  upon  the  State 
to  show  that  the  operation  is  not  necessary,  but  that  this 
is  a  matter  of  defense  peculiarly  within  the  knowledge 
of  the  defendant,  which  he  must  prove  if  available. 

The  supreme  court  of  Kew  York  lays  down  the  rule 
unqualifiedly  that  it  is  not  for  the  State  to  prove 
the  absence  of  a  necessity  for  performing  the  operation, 


*  Moody  vs.  State,  11  Ohio  St.,  110. 
28 


428    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

but  that  this  is  a  matter  of  defense  which  must  be  affirm- 
atively proved  by  the  defendant.*  The  same  rule  is  ad- 
hered to  in  the  State  of  Wisconsin,  f 

Constitutional  and  Legal  Safeguards  in  Criminal 
Cases. — When  one  accused  of  a  criminal  offense  enters 
a  court  of  justice  sitting  for  the  purpose  of  determining 
his  innocence  or  guilt  of  the  crime  charged,  he  is  pro- 
tected by  constitutional  guarantees  and  presumptions 
of  law,  wisely  designed  to  guard  the  innocent  from  the 
untoward  and  sometimes  perilous  chain  of  circum- 
stances which  often  falsely  bespeak  guilt.  In  all 
criminal  cases  the  place  of  trial  must,  by  virtue  of 
the  United  States  Constitution,  be  in  the  State  and 
district  where  the  crime  has  been  committed.  This 
provision  prevents  the  possibility  of  taking  the  prisoner 
to  a  distant  State,  where  it  would  probably  be  impossi- 
ble for  him  to  secure  evidence  to  disprove  or  combat 
that  produced  by  the  prosecution.  The  manner  of 
trial,  according  to  the  guarantee  of  the  United  States 
Constitution,  shall  be,  in  federal  cases,  by  jury,  and  by 
a  similar  guarantee  contained  in  the  constitutions  of  the 
several  States  the  trial  of  prisoners  for  crimes  against 
the  respective  States  shall  also  be  by  jury.  These  guar- 
antees, together  with  the  wise  laws  which  generally  pre- 

*  People  vs.  McGonegal,  17  N.  Y.  Supp.,  147,  136  N.  Y.,  62;  Brad- 
ford va.  People,  20  Hun,  309. 

f  Hatchard  vs.  State,  79  Wis.,  357,  48  N.  W.  Rep ,  380. 


CRIMINAL   LIABILITY.  429 

vail  for  the  purpose  of  securing  unprejudiced  juries, 
insure  the  prisoner  a  reasonably  fair  trial. 

The  first,  and  probably  one  of  the  most  important, 
intendments  of  the  law  in  the  prisoner's  favor  is  the 
presumption  of  his  innocence.  This  presumption  can 
only  be  overcome  by  the  production  of  evidence  on  the 
trial  so  strong  as  to  remove  from  the  mind  of  the  jury 
every  reasonable  doubt  as  to  his  guilt.  In  civil  matters 
it  has  been  shown  that  the  jury,  after  weighing  the  evi- 
dence, are  to  give  their  verdict  in  accordance  with  the 
preponderance  of  evidence;  but  in  criminal  matters,  it 
must  be  observed,  the  rule  is  different.  Here  the  jury 
can  not  find  the  accused  guilty  unless  the  evidence  indi- 
cating guilt  preponderates  so  greatly  over  that  calcu- 
lated to  show  innocence  as  to  remove  from  the  mind  of 
the  jury  every  reasonable  doubt  of  the  defendant's  guilt. 

In  the  manner  of  producing  the  evidence  against 
the  prisoner  the  solicitude  of  our  Constitution  and  laws 
for  justice  to  the  accused  is  again  shown.  In  civil 
matters,  if  a  witness  is  far  distant  from  the  place  of 
trial,  or  if  he  is  sick  and  unable  to  appear  in  court,  his 
deposition  may  be  taken  and  produced  upon  the  trial 
with  a  like  effect  as  his  personal  statement  made  before 
the  jvLTj,  or  perhaps  even  greater;  but  not  so  in  crimi- 
nal matters.  Here  the  Constitution  says  the  accused 
shall  be  confronted  by  the  witnesses  against  him — that 
is,  he  shall  meet  them  face  to  face — and  they  shall  testify 


430    THE  LAW  IN  ITS  EELATIONS  TO  PHYSICIANS. 

in  open  court  and  in  his  presence.  The  prisoner  is  in- 
sured the  right  of  compulsory  process  to  obtain  witnesses 
in  his  favor,  and  is  spared  the  necessity  of  being  himself 
required  to  testify.  Moreover,  he  is  guaranteed  the 
right  of  being  informed  of  the  nature  and  cause  of  the 
accusation  against  him,  and  is  assured  the  assistance  of 
counsel  for  his  defense.  And,  above  all,  when  once 
acquitted  of  the  crime  charged,  his  innocence  can  never 
again  be  judicially  questioned.  But,  notwithstanding 
all  these  legal  barriers  thrown  about  the  accused,  it  is 
apprehended  that  many  innocent  men  have  suffered 
because  of  inadvertent  circumstances,  or  perhaps 
through  indiscretions.  The  evidence  of  circumstances 
is,  as  all  know,  often  most  convincing,  and  yet  some- 
times leads  to  absolutely  false  conclusions. 

Kules  Governing  Admission  of  Evidence  in  Abor- 
tion Cases. — In  order  to  understand  more  particularly 
what  character  of  evidence  is  admissible  to  prove  the 
commission  of  the  crime  in  consideration  and  the 
amount  and  weight  of  such  evidence  necessary  to  fix  the 
sruilt,  an  examination  will  be  made  of  a  few  cases  in 
which  the  evidence  has  been  passed  upon  and  the  pris- 
oner's guilt  or  innocence  determined  by  the  jury.  But 
first  a  brief  reference  will  be  had  to  the  general  rules 
of  law  regulating  the  admission  of  evidence. 

In  the  trial  of  a  case  before  a  jury,  whenever  either 
party  offers   evidence,  the   admissibility  of   that   evi- 


CRIMINAL  LIABILITY.  431 

dence  is  a  question  of  law  to  be  decided  by  the  judge. 
If  the  judge  decides  that  the  evidence  is  proper  and 
admissible,  it  then  becomes  the  province  of  the  jury  to 
weigh  and  determine  the  effect  of  that  evidence.  The 
judge,  in  passing  upon  the  admissibility  of  the  evidence, 
must  determine  whether  it  is  relevant  to  the  question 
at  issue.  In  determining  this,  recourse  is  had,  if  in  a 
civil  matter,  to  the  pleadings,  or  preliminary  written 
statements  of  the  facts  or  conditions  claimed  by  the 
respective  parties;  if  in  a  criminal  matter,  to  the  in- 
dictment or  information,  and  herein  will  be  found  many 
technical  discussions,  which  can  be  neither  interestingly 
nor  profitably  examined. 

The  general  rule,  that  the  best  evidence  of  which 
the  case  in  its  nature  is  susceptible  is  required,  has  been 
heretofore  referred  to.  This  rule  simply  means  that 
when  a  certain  fact  can  be  shown  by  authentic  evidence 
a  secondary  or  inferior  grade  of  evidence  will  not  be 
admitted  to  prove  the  same;  if,  for  instance,  the  con- 
tents of  a  certain  letter  or  writing  are  desired  to  be 
proved,  then  the  letter  or  original  writing  itself  is  the 
only  admissible  evidence;  if,  however,  it  can  be  shown 
that  the  letter  is  lost  or  destroyed,  then  secondary  evi- 
dence of  its  contents  may  be  admitted. 

Similar  in  principle  to  this  rule  is  the  one  rejecting 
as  incompetent  all  hearsay  evidence.  The  rule  regard- 
ing hearsay  evidence  is  that  the  witness  may  testify  as 


432    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

to  facts  lying  within  his  own  knowledge^,  but  that  he 
can  not  testify  from  information  given  by  others.  There 
are,  however,  a  number  of  exceptions  to  this  rule  which 
figure  very  importantly  in  the  trials  of  the  class  of 
cases  we  are  about  to  examine.  One  of  these  excep- 
tions, or  apparent  exceptions,  is  that  the  expressions  of 
another  showing  his  bodily  or  mental  feelings  at  the 
time  they  were  made  may  be  given  in  evidence  by  a 
witness  who  was  present,  where  the  physical  or  mental 
condition  of  such  party  at  that  time  is  relevant  to  the 
question  in  issue.  Another  and  important  exception, 
and  one  which  it  is  difficult  to  adequately  and  clearly  ex- 
press in  few  words,  is  the  rule  that  the  circumstances 
and  statements  forming  part  of  the  res  gestce  are  ad- 
missible in  evidence ;  by  the  term  res  gestce  is  meant  all 
of  those  circumstances  and  things  which  are  related  to 
or  throw  light  upon  the  real  question  in  issue.  Mr. 
Greenleaf,  in  his  philosophical  work  upon  Evidence,  in 
describing  this  rule,  said :  "  The  affairs  of  men  consist 
of  a  complication  of  circumstances  so  intimately  inter- 
woven as  to  be  hardly  separable  from  each  other.  Each 
owes  its  birth  to  some  preceding  circumstance,  and  in 
its  turn  becomes  the  prolific  parent  of  others ;  and  each, 
during  its  existence,  has  its  inseparable  attributes  and 
its  kindred  facts,  materially  affecting  its  character,  and 
essential  to  be  known,  in  order  to  a  right  understand- 
ing of  its  nature.     These  surrounding  circumstances, 


CRIMINAL  LIABILITY.  433 

constituting  parts  of  the  res  gestce,  may  always  be  shown 
to  the  jury,  along  with  the  principal  fact ;  and  their  ad- 
missibility is  determined  by  the  judge,  according  to  the 
.  degree  of  their  relation  to  that  fact,  and  in  the  exercise 
of  his  sound  discretion;  it  being  extremely  difficult,  if 
not  impossible,  to  bring  this  class  of  cases  within  the 
limits  of  a  more  particular  description."  *  To  illus- 
trate this  rule,  if  one  running  from  a  room  in  which  a 
murder  had  just  been  committed  were  heard  to  use  cer- 
tain expressions  or  make  certain  statements,  those  ex- 
pressions or  statements  would  be  competent  as  part  of 
the  res  gestce,  they  tending  to  throw  light  upon  the 
main  question  in  issue.  As  a  general  rule,  the  circum- 
stances or  declarations  offered  in  proof  as  part  of  the 
res  gestce  must  be  contemporaneous  with  the  main  fact 
under  consideration  and  so  connected  with  it  as  to  illus- 
trate its  character.  It  has  been  held,  however,  that 
where  the  witness  reached  the  murdered  person  twenty 
seconds  after  the  injury  and  heard  him  say,  "  I'm 
stabbed ;  I'm  gone ;  Dan  Hackett  stabbed  me,"  this  evi- 
dence could  be  admitted  as  part  of  the  res  gestce.  The 
admissibility  of  evidence  under  this  rule  must  depend 
largely  upon  the  circumstances  of  the  particular  case, 
as  will  be  more  particularly  and  practically  seen  in  ob- 
serving its  application  in  the  cases  hereafter  examined, 

*  1  Greeulcaf  on  Evidence,  §  108. 


434   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

More  properly  the  foregoing  rules  admitting  evi- 
dence of  statements  expressive  of  bodily  and  mental 
feelings,  and  statements  which  are  part  of  the  res  gestce, 
are  not,  in  fact,  exceptions,  but  are  apparently  excep- 
tions to  the  rule  debarring  hearsay  evidence,  for  the 
veitness  in  neither  of  these  cases  attempts  to  testify  as 
to  the  truth  of  the  subject  matter  of  the  declaration,  but 
simply  as  to  statement  or  expression  which  he  heard. 

There  are,  however,  several  real  exceptions  to  the 
rule.  One  of  these  exceptions,  which  is  of  material  im- 
portance in  this  class  of  cases,  is  that  dying  declarations 
will  be  received  as  evidence  of  the  fact  which  they  recite. 
This  rule  is  not  applicable  in  civil  matters,  but  only  in 
cases  of  homicide,  and  such  declarations  are  then  admis- 
sible only  for  the  purpose  of  showing  the  circumstances 
of  the  death.  Such  declarations  must,  however,  be 
made  while  in  extremis,  the  party  realizing  his  condi- 
tion and  entertaining  no  hope  of  recovery.  The  theory 
upon  which  this  class  of  statements  is  received  as  evi- 
dence of  the  fact  recited  is  that  a  situation  so  solemn 
and  so  awful  is  considered  by  the  law  as  creating  an 
obligation  equal  to  that  which  is  imposed  by  a  positive 
oath  in  a  court  of  justice,* 

Another  exception  which  sometimes  has  an  impor- 
tant bearing  in  this  class  of  cases  is  the  rule  that  con- 

*  1  Greenleaf  on  Evidence,  §  156. 


CRIMINAL  LIABILITY.  435 

fessions  of  the  prisoner,  or,  in  civil  matters,  admissions 
against  interest,  may  be  admitted  in  evidence  to  prove 
the  subject  matter  of  their  contents.  In  view  of  this 
exception  and  of  the  great  zeal  shown  by  certain  minis- 
terial officers  whose  duty  it  is  to  apprehend  and  retain 
custody  of  the  accused,  to  procure  condemning  evi- 
dence, often  irrespective  of  the  merits  of  the  case,  one 
who  is  so  unfortunate  as  to  have  fallen  under  suspicion, 
perhaps  by  force  of  untoward  circumstances,  for  which 
he  is  not  accountable,  should  have  this  rule  in  mind, 
and  carefully  guard  his  utterances  lest  some  intention- 
ally innocent  remark,  made  under  the  excitement  of  the 
occasion,  be  repeated  in  court,  possibly  with  a  slight 
alteration  of  wording  or  a  change  of  expression,  to  con- 
vey an  impression  of  guilt  not  intended  and  not  justified 
by  the  facts. 

These  are  the  principal  rules  of  evidence  adverted 
to  in  determining  the  admissibility  of  evidence  in  this 
class  of  cases.  An  examination  will  now  be  made  of 
the  cases  themselves  for  the  purpose  of  ascertaining 
the  weight  and  effect  of  the  evidence  when  admitted 
before  the  jury. 

Proving  Unlawful  Performance  of  Abortion;  Illus- 
trations.— In  cases  where  the  mother  dies  from  the 
operation  it  may  happen  that  the  fact  that  an  abortion 
has  been  performed  can  not  be  shown  by  any  living 
witness.    In  such  cases  the  only  manner  of  proving  the 


436   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

corpus  delicti,  or  body  of  the  wrong,  is  by  having  a 
competent  medical  man  perform  a  post-mortem  and 
then  testify  before  the  jury  as  to  the  condition  which  he 
found  present.  In  addition  to  the  evidence  which  such 
a  physician  gives  as  to  the  condition  of  the  deceased,  it 
is  competent  for  him  to  also  express  his  opinion  or  be- 
lief as  to  whether  she  was  pregnant,  and,  if  so,  whether 
or  not  an  abortion  had  been  performed  upon  her,  and 
give  his  reasons  for  such  belief.*  And  so,  where  the 
defendant  alleges  that  the  deceased  operated  upon  her- 
self, and  that  he  was  called  in  after  such  operation 
and  superintended  her  delivery  of  a  dead  foetus  and 
afterbirth,  and  acted  only  as  an  honest  medical  prac- 
titioner should  act  when  called  to  attend  a  woman 
suffering  from  such  injuries,  it  is  competent  for  a 
skillful  physician  and  surgeon  who  has  examined  the 
uterus  of  the  deceased  to  testify  whether  or  not  in 
his  opinion  the  injuries  he  found  thereon  were  self- 
inflicted,  f 

The  case  of  State  vs.  Howard  J  is  a  revolting  one,  in 
which  the  fact  that  an  abortion  had  been  performed 
seems  to  have  first  become  known  through  a  post-mor- 
tem examination.  Here  the  evidence  showed  that  two 
girls,  the  deceased  and  her  sister,  left  their  homes  for 

*  State  vs.  Smith,  32  Me.,  369. 

f  State  vs.  Lee,  65  Conn.,  265,  30  Atl.  Rep.,  1110. 

X  State  vs.  Howard,  32  Vt,  380. 


CRIMINAL  LIABILITY.  437 

the  purpose  of  visiting  relatives  in  a  neighboring  town. 
Soon  afterward  they  left  the  house  where  they  were 
visiting  for  the  ostensible  purpose  of  taking  an  ex- 
cursion into  an  adjoining  State,  but  instead  they  went 
to  the  house  of  the  defendant,  a  practising  physician; 
about  two  weeks  after  arriving  there  the  deceased  ex- 
pired. Her  body  was  placed  in  a  cofhn  and  she  was 
sent  to  her  home  and  buried,  but  a  few  days  afterward 
was  disinterred  and  a  post-mortem  examination  made. 
The  examination  extended  through  the  body  and  inter- 
nal organs,  but  no  examination  was  made  of  the  brain. 
The  external  opening  of  the  vagina  was  greatly  ex- 
tended, so  that  the  hand,  without  much  difficulty,  might 
be  passed  in;  the  uterus  was  enlarged  in  size,  its  walls 
were  thickened,  and  its  blood-vessels  were  increased  in 
size  and  number,  as  is  usual  in  case  of  pregnancy,  and 
internally  there  were  marks  of  the  attachment  of  a  pla- 
centa, that  had  been  removed,  leaving  open  sinuses ;  the 
breasts  were  distended,  and  contained  milk,  and  there 
was  a  dark  areola  about  each  nipple ;  the  mouth  of  the 
womb  was  then  about  half  an  inch  in  diameter ;  the  neck 
of  the  womb  was  greatly  inflamed,  and  the  lining  mem- 
brane had  all  been  taken  off;  there  were  sloughs  and 
holes  in  the  substance  of  the  neck;  the  body  of  the 
womb  was  healthy,  and  all  the  internal  organs  of  the 
body  were  in  a  natural  and  healthy  condition.  The 
physician  who  performed  the  post-mortem  examination 


438    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

testified,  upon  tlie  trial  of  the  case,  that  in  his  opinion 
the  direct  cause  of  tlie  death  was  the  inflammation  of 
the  neck  of  the  womb,  and  perhaps  haemorrhage;  that 
that  was  a  sufficient  cause  of  death;  that  there  had 
been  a  foetus  in  the  womb  from  four  to  seven  months 
old  that  had  been  expelled  before  the  examination.  He 
also  testified  that  he  had  removed  the  uterus  and  pre- 
served it  in  alcohol,  and  upon  request  of  the  counsel  for 
the  State  he  produced  it.  It  was  exhibited  to  the  jury 
and  the  various  parts  and  marks  were  pointed  out  and 
described. 

The  State  then  produced  a  witness  who  testified  to 
the  finding  of  a  foetus  upon  the  premises  of  the  defend- 
ant. The  admissibility  of  this  evidence  was  contested 
by  the  defendant,  but  it  was  admitted  as  tending  strong- 
ly to  show  the  corpus  delicti. 

Deceased's  sister  then  testified  that  when  she  and 
deceased  left  home  it  was  understood  between  them  that 
an  abortion  was  to  be  performed  upon  deceased;  that 
just  before  going  to  the  defendant,  who  lived  in  a  vil- 
lage some  miles  distant  from  the  one  in  which  they 
were  visiting,  deceased  met  the  father  of  her  child,  who, 
it  seems,  had  arranged  with  defendant  to  take  the  case ; 
that  arriving  at  the  house  of  the  defendant  they  told 
him  deceased's  condition,  that  she  was  six  months  ad- 
vanced, and  that  they  desired  him  to  procure  an  abor- 
tion; that  he  did  not  consent  at  first,  but,  after  corre- 


CRIMINAL  LIABILITY.  439 

spending  with  the  child's  father,  agreed  to  go  through 
with  the  operation  for  one  hundred  dollars;  that  de- 
fendant first  gave  deceased  medicine  in  the  form  of 
bitters,  about  a  gobletful  at  a  dose,  which  operated  as  an 
emetic  and  cathartic.  That  about  a  week  after  their 
arrival  defendant  performed  an  operation  upon  de- 
ceased with  instruments,  she  lying  on  the  bed  in  their 
room,  the  witness  being  present;  that  he  used  two  or 
three  instruments;  that  he  used  the  instruments  in- 
ternally upon  the  private  parts  of  deceased,  who  com- 
plained of  pain  and  its  hurting  while  the  operation  was 
going  on;  that  discharges  of  water  came  from  her, 
which  continued  to  flow  for  two  or  three  hours  more; 
that  on  the  next  day  defendant  made  another  operation 
in  a  similar  manner  and  attended  by  pain,  which  was 
indicated  by  complaints  and  gripping  of  the  hands; 
that  the  result  of  this  operation  was  flowing,  and  that 
the  witness  saw  considerable  blood;  that  near  night  of 
the  same  day  defendant  performed  a  third  operation, 
making  the  same  use  of  instruments  as  in  the  former 
operation,  and  in  connection  therewith  introduced  his 
hand;  that  the  result  was  a  child  about  two  thirds 
grown;  that  defendant  took  the  child  from  the  room 
and  witness  saw  it  no  more.  From  the  further  evi- 
dence it  seems  that  deceased  lived  a  week  after  the 
first  operation;  that  she  was  delirious  several  days  be- 
fore death  and  became  violent. 


440    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

The  theory  upon  which  the  defense  was  conducted 
was  that  deceased,  before  going  to  defendant's  house, 
had  taken  strong  medicines,  which  were  accountable  for 
the  miscarriage  and  her  subsequent  death,  and  that  the 
professional  services  rendered  to  her  by  defendant  were 
only  such  as  her  condition  required  from  a  physician 
in  the  honest  and  conscientious  practice  of  his  profes- 
sion. To  show  this,  an  inmate  of  the  defendant's  house- 
hold was  introduced  as  a  witness,  who  gave  in  evidence 
as  a  dying  declaration  the  following  statement  of  the 
deceased.  The  witness  said  that  on  Thursday,  the  day 
before  the  patient's  death,  about  noon  she  had  a  con- 
versation with  her  while  her  sister  was  at  dinner;  that 
deceased  told  witness  she  thought  she  could  not  live,  and 
did  not  expect  to;  that  she  had  been  taking  powerful, 
poisonous  medicines  before  she  came  to  defendant's,  and 
she  thought  she  had  destroyed  her  life,  and  that  that 
was  what  had  caused  her  mouth  to  be  sore;  that  she 
hoped  they  would  not  blame  the  doctor;  and  that  she 
thought  he  had  done  everything  he  could  to  restore  her 
health,  and  that  she  had  been  out  of  health  a  long 
while.  The  witness  testified  that  she  did  not  see  any 
indication  that  deceased  was  not  perfectly  sane,  and 
that  witness  had  never  discovered  any  insanity  about 
her,  and  had  no  suspicion  of  it;  that  she  seemed  sane 
through  that  day,  but  that  on  the  next  morning  she 
seemed  to  have  lost  her  reason. 


CRIMINAL  LIABILITY.  441 

The  State  introduced  witnesses  who  testified  that 
about  four  o'clock  Thursday  morning,  the  day  upon 
which  the  above  conversation  was  said  to  have  taken 
place,  the  deceased  became  violent  and  kicked  off  the 
footboard,  and  that  she  was  not  in  a  condition  to  be  able 
to  converse  during  the  day. 

Other  evidence  of  a  cumulative  or  corroborative 
character  was  given  by  both  sides.  The  jury  found  the 
defendant  guilty  of  the  procurement  of  an  abortion. 
The  case  was  appealed  to  the  supreme  court  and  there 
affirmed,  after  which  the  defendant  was  sentenced  to 
the  State  prison. 

In  the  case  of  State  vs.  Glass  *  is  an  illustration  of 
the  application  of  the  rule  admitting  evidence  of  state- 
ments which  form  part  of  the  res  gestce.  Here  the  de- 
ceased applied  to  two  physicians,  informing  them  of 
her  condition  and  asking  them  to  perform  an  abortion 
upon  her;  they  both  refusing,  she  then  went  to.  the 
defendant.  The  State,  in  order  to  prove  the  condition 
of  the  deceased,  called  these  two  physicians  as  witnesses 
and  had  them  testify  regarding  the  statements  made  to 
them  by  deceased.  The  introduction  of  this  evidence 
was  objected  to  by  the  defendant,  but  it  was  admitted 
as  part  of  the  res  gestce.  The  supreme  court,  in  re- 
viewing the  case,  held  that  the  trial  court  ruled  cor- 

*  State  vs.  Glass,  5  Or.,  73. 


442    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

rectly  in  admitting  this  evidence.  Here  the  statements 
admitted  related  so  intimately  to  the  condition  which 
was  the  principal  inducement  to  the  crime  for  which 
the  defendant  was  being  tried,  and  were  made  under 
circumstances  where  every  possible  inducement  to  sup- 
press, conceal,  or  distort  the  truth  was  overcome,  that 
they  could  not  well  be  considered  otherwise  than  as 
admissible  upon  the  grounds  named. 

Nor,  generally  speaking,  can  the  evidence  of  a  physi- 
cian who  is  called  upon  professionally  to  perform  an 
unlawful  abortion  be  objected  to  upon  the  ground  that 
the  knowledge  thereby  gained  by  him  is  privileged.* 

This  rule  is  illustrated  in  the  case  of  State  vs. 
Smith,  f  In  this  case  the  evidence  showed  that  the 
prosecuting  witness,  an  unmarried  woman  of  twenty- 
three,  who  was  advanced  between  five  and  six  months 
in  pregnancy,  came  to  the  house  of  the  defendant,  a 
practising  physician,  on  the  25th  of  September,  where 
she  remained  for  some  time,  and  that  on  the  morning 
of  October  5th  she  had  a  miscarriage. 

The  prosecuting  witness  testified  that  previous  to 
the  time  of  her  going  to  defendant's  house  she  was  in 
sound  physical  health  and  that  no  attempt  had  been 
made  to  produce  a  miscarriage.  She  testified  that  on 
the  morning  of  her  arrival  defendant  began  treating  her 

*  Sea  pp.  483,  514  et  seq. 

f  State  vs.  Smith,  99  la.,  26,  68  N.  W.,  428. 


CRIMINAL  LIABILITY.  44.3 

for  the  purpose  of  producing  a  miscarriage,  and  that 
certain  medicines  and  instruments  were  used  upon  her, 
and  that  a  miscarriage  followed  their  use. 

The  testimony  of  the  defendant  was  that  the  com- 
plaining witness  came  to  her  for  treatment  and  that 
she  was  in  a  deranged  condition ;  "  that  the  uterus  was 
sore,  swollen,  and  very  much  inflamed,  and  it  looked  like 
it  had  been  punctured  in  the  mouth  of  it,  and  all 
around  the  sides  " ;  and  that  it  was  "  tipped,"  the  parts 
swollen,  and  a  discharge  coming  therefrom.  Defend- 
ant admitted  that  she  used  the  kind  of  instruments 
named  by  prosecuting  witness,  but  testified  that  they 
were  used  in  a  dilferent  way  and  for  a  different  purpose 
from  that  stated.  She  described  the  treatment  given, 
and  said  it  was  proper  treatment  under  the  conditions 
to  prevent  a  miscarriage.  Several  experienced  physi- 
cians confirmed  her  in  this  statement  as  to  the  propri- 
ety of  the  treatment,  under  conditions  such  as  she  stated 
existed,  while  one  or  two  others  condemned  the  treat- 
ment. Defendant  further  testified  that  on  the  fourth 
day  of  October  she  found  the  head  of  the  foetus  in  the 
vagina,  and  that  it  had  commenced  to  leave  the  uterus ; 
believing  that  a  miscarriage  could  not  be  prevented, 
and  that  the  obstruction  must  be  removed,  and  having 
no  instruments,  defendant  sent  for  another  physician 
who,  upon  arriving,  refused  to  have  anything  to  do 

with  the  case,  but,  according  to  defendant's  testimony, 
29 


444:    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

advised  that  Nature  be  allowed  to  take  her  course. 
Whether  anything  further  was  done  to  prevent  or  pro- 
duce the  miscarriage  the  evidence  does  not  show. 

The  physician  who  was  called  to  remove  the  foetus 
was  produced  as  a  witness  by  the  State  at  the  trial  and 
asked  to  state  what  he  saw  and  did  in  the  presence  of 
the  defendant.  The  defendant  objected  to  the  witness 
answering  the  question  on  the  ground  "  that  the  things 
he  saw,  and  the  conversation  he  had  with  this  defendant 
upon  the  occasion  of  the  visit  mentioned  by  him,  were 
confidential,  and  that  the  knowledge  he  obtained  upon 
that  occasion  was  obtained  in  his  capacity  as  a  physi- 
cian." The  trial  court  admitted  the  testimony  of  the 
witness.  The  defendant's  counsel  excepted  to  the  ruling 
and  the  question  was  reviewed  by  the  supreme  court, 
who  held,  in  accordance  with  the  rule  above  laid  down 
relative  to  privileged  communications,  that  as  the  facts 
and  the  testimony  of  this  witness  showed  "that  the 
communication  of  defendant  to  him  was  for  an  unlaw- 
ful purpose  and  had  for  its  object  the  commission  of  a 
crime,"  it  therefore  was  not  privileged. 

The  witness  testified  as  follows :  "  I  went  into  the 
room  and  took  off  my  overcoat,  and  laid  down  my  in- 
struments. (Defendant)  told  me  that  she  had  a  friend 
from  the  southern  part  of  the  State ;  that  she  came  there 
to  be  treated ;  that  she  was  in  the  family  way,  and  was 
to  be  married  to  a  man  in  Pennsylvania,  and  must  get 


CRIMINAL  LIABILITY.  445 

out  of  this  fix  before  she  was  to  be  married.  She 
wanted  that  I  should  go  into  the  room  and  examine 
the  patient,  and  I  refused  to  go.  She  told  me  that  the 
girl  was  sick.  I  told  her  that  I  would  have  nothing 
to  do  with  the  case.  I  went  into  the  other  room  and 
put  on  my  coat." 

There  was  considerable  other  evidence  given  on  be- 
half of  both  the  defendant  and  of  the  State,  yet  the 
foregoing  seems  to  have  been  the  principal  evidence  upon 
which  the  case  was  decided.  The  jury  found  the  de- 
fendant guilty  of  producing  a  miscarriage  and  she  was 
sentenced  to  imprisonment  in  the  penitentiary. 

The  question  of  what  length  of  time  will  be  con- 
sidered sufficient  to  afford  an  opportunity  to  operate 
is  answered  to  a  certain  extent  in  the  cases  of  Common- 
wealth vs.  Drake  *  and  People  vs.  My Gonegal.f  In 
the  former  case  the  evidence  showed  that  the  woman 
upon  whom  the  abortion  was  performed  and  the  defend- 
ant were  together  fifteen  minutes;  this  was  thought  to 
be  sufficient  time  to  afford  opportunity  for  the  opera- 
tion. Here  the  woman  upon  whom  the  abortion  was 
performed,  and  who  for  convenience  will  be  designated 
S.,  and  a  friend  came  from  a  distant  town  to  the 
city  where  defendant  lived  for  the  purpose  of  having 
the  abortion  performed.    The  friend  testified  that  they 

*  Com.  vs.  Drake,  124  Mass.,  21. 

f  People  vs.  McGonegal,  17  N.  T.  Supp.,  147,  13G  N.  Y.,  62. 


446    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

went  to  defendant's  house,  where  S.  told  defendant  of 
her  condition;  defendant  and  S.  were  then  alone  to- 
gether for  some  fifteen  minutes.  In  answer  to  a  ques- 
tion by  defendant's  counsel,  the  witness  testified  that 
S.  told  her  that  defendant  had  operated  on  her  with 
something  which  she  concealed  with  her  handkerchief. 
Witness  further  testified  that  S.  suffered  great  pain 
that  night;  that  two  days  later,  having  been  ordered 
from  their  lodging  house  by  their  keeper,  they  went 
to  the  house  of  defendant  and  remained  there  three 
days. 

The  defendant  denied  that  either  S.  or  her  friend 
had  ever  been  in  the  house. 

A  hack  driver  testified  that  he  drove  the  two  girls 
from  their  lodging  house  to  the  corner  near  where  de- 
fendant lived,  tut  that  he  did  not  know  where  they 
went. 

There  was  nothing  further  to  connect  the  defendant 
with  the  procuring  of  the  miscarriage  except  that  the 
friend,  who  had  always  lived  in  a  distant  town,  described 
accurately  the  interior  arrangement  of  the  house  of  the 
defendant.  The  jury  found  the  defendant  guilty  of  the 
crime  of  procuring  an  abortion. 

In  the  case  of  People  vs.  McGoncgal  the  deceased 
and  defendant  were  alone  together  in  defendant's  office 
for  a  length  of  time  not  exceeding  five  minutes  in  dura- 
tion.   The  State  showed  by  expert  testimony  that  this 


CRIMINAL  LIABILITY.  447 

length  of  time  might  have  been  sufficient  for  the  pur- 
pose; this,  in  addition  to  the  fact  that  the  evidence 
showed  that  defendant  had  met  deceased  some  days 
previously,  and  that  there  had  then  been  an  opportunity 
to  arrange  for  the  operation,  was  held  sufficient  to  jus- 
tify the  jury  in  finding  that  there  was  an  opportunity 
to  commit  the  crime.  In  this  case  the  defendant  was 
convicted  upon  circumstantial  evidence.  The  evidence 
showed  that  a  friend  and  intimate  companion  of  the  de- 
ceased, who  knew  of  her  pregnancy  and  her  desire  to 
obtain  relief  by  prohibited  means,  accompanied  her  to 
the  office  of  defendant  on  July  2d;  that  the  friend  re- 
mained in  the  reception  room  while  the  defendant  and 
deceased  were  in  the  private  office  together,  but  that  they 
remained  there  not  longer  than  five  minutes.  On  the 
4th  of  July  deceased  was  taken  sick  and  defendant  went 
to  see  her  at  her  lodging  house,  and,  it  seems,  was  in- 
formed by  the  landlady  that  if  there  was  anything  wrong 
with  the  patient  she  must  be  removed.  That  night  at 
about  eleven  o'clock  defendant  took  the  patient  to  an- 
other house  where  she  remained  until  her  death,  which 
occurred  eight  days  later.  Upon  the  death  of  the  pa- 
tient the  defendant  removed  the  body  himself  at  about 
twelve  o'clock  at  night  to  the  undertaker's,  and  gave  a 
certificate  of  death,  ascribing  it  to  inflammatory  rheu- 
matism of  the  heart.  It  also  appeared  that  several 
days  subsequent  to  the  patient's  death  defendant  went 


448    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

to  deceased's  friend  for  the  purpose  of  getting  her  to 
write  or  sign  a  letter  purporting  to  come  from  the  de- 
ceased which  should  say  that  she  was  doing  nicely  with 
an  old  friend  of  hers,  working  every  day  and  Sunday, 
and  would  be  home  in  a  month  or  two;  not  to  worry. 
About  ten  days  after  patient's  death  the  body  was  ex- 
humed and  an  autopsy  held  which  showed  that  the 
death  was  caused  by  peritonitis,  resulting  from  an  abor- 
tion which  had  been  performed  upon  deceased. 

The  defendant's  evidence  was  that  when  deceased 
called  upon  him  on  July  2d  she  informed  him  of  her 
condition,  from  which  he  apparently  inferred  that  she 
desired  him  to  operate  upon  her.  She  said  that  she  had 
been  making  efforts  in  that  direction  herself,  and  that 
she  was  then  complaining  of  the  pains  that  are  usu- 
ally regarded  as  a  premonition  of  a  miscarriage;  that 
he  would  not  do  anything  to  aid  her  in  the  way  of  pro- 
curing a  miscarriage,  but  told  her  to  go  home  and  take 
care  of  herself,  and  that  he  would  treat  her,  if  she 
wanted  him,  to  the  best  of  his  ability.  Defendant  stated 
when  he  called  upon  deceased  on  4th  of  July  he  did  not 
recognize  her  as  having  called  upon  him  before,  and 
that  he  did  not  make  any  particular  examination  of 
her,  apparently  because  of  the  demand  of  the  landlady 
for  her  immediate  removal.  The  defendant's  evidence 
does  not  show  when  he  recognized  deceased  as  the  per- 
son who  visited  him  at  liis  office  on  July  2d.    It  seems 


CRIMmAL  LIABILITY.  449 

that  defendant  testified  that  during  all  the  time  he  was 
treating  deceased  for  rheumatism,  he  made  no  examina- 
tion whatever  to  ascertain  whether  the  efforts  made  by 
deceased  to  produce  an  abortion,  as  previously  testified 
to  by  him,  had  had  any  results  or  not. 

The  jury  found  the  defendant  guilty  of  man- 
slaughter. An  appeal  was  taken  to  the  general  term  of 
the  supreme  court  where  the  judgment  of  conviction 
was  affirmed,  and  from  there  the  case  was  taken  to  the 
court  of  appeals,  with  like  result.  The  court  of  appeals, 
after  reviewing  the  evidence,  said :  "  If  innocent,  it  was 
his  misfortune  to  voluntarily  environ  himself  in  a  net- 
work of  circumstances  which,  to  the  minds  of  intelli- 
gent men  required  to  reach  results  by  rational  pro- 
cesses, would  admit  of  no  other  conclusion  than  that 
of  guilt." 

Evidence  of  Willingness  and  Capability  Admissible. 
— While  it  is  essential  for  the  State,  in  proving  the  com- 
mission of  this  sort  of  a  crime,  to  show  an  opportunity, 
it  is  also  competent,  although  not  essential,  for  it  to 
show  a  state  of  preparedness  or  of  willingness  on  the 
part  of  the  defendant  to  render  such  services.  It  was 
accordingly  held  proper  to  admit  the  evidence  of  a  wit- 
ness who  testified  that,  several  months  before  the  al- 
leged crime  was  committed,  she  saw  a  metallic  instru- 
ment in  the  defendant's  hands,  in  two  parts,  about  a 
foot  long,  round  and  hollow,  and  that  the  defendant 


450    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

said  it  was  the  best  kind  of  an  instrument  for  procuring 
an  abortion,  because  safer  than  any  other  kind.* 

Upon  the  trial  of  a  physician  in  IsTew  York  State 
it  was  held  proper  to  admit  in  evidence  a  circular  which 
the  defendant  had  issued  several  years  previously. 

In  commenting  upon  the  admissibility  of  this  cir- 
cular, f  which,  it  seems,  was  a  most  flagrant  production, 

*  Com.  vs.  Blair,  126  Mass.,  40. 

\  The  following  is  the  principal  part  of  the  circular: 

"  Dr. 's  female  regulator ;  married  ladies  should  not  take  it. 

For  reference  apply  at  his  office.  Office  hours  from  8  to  11  a.m.,  and 
from  1  to  5  p.  M. 

"^  Card. — Dr. would  respectfully  announce  to  the  ladies  of 

S and  vicinity  that  he  is  at  all  times  ready  and  happy  to  have  a 

social  consultation  upon  all  matters  relating  to  pregnancy  or  confinement, 
or  in  regard  to  lawful  production  of  a  premature  birth,  which,  in  all 
proper  cases,  he  will  produce  in  a  skillful  manner,  guarantee  an  easy 
time,  and  speedy  recovery.  For  the  information  of  all  I  insert  the 
statute  in  reference  to  the  unlawful  production  of  premature  birth,  which 
is  as  follows,  to  wit: 

"  Every  woman  who  shall  solicit  of  any  person  any  medicine,  drug, 
or  substance,  or  anything  whatsoever,  and  shall  take  the  same,  or  shall 
submit  to  any  operation  or  other  means  whatsoever,  with  intent  thereby 
to  procure  a  miscarriage,  shall  be  deemed  guilty  of  a  misdemeanor,  and 
shall,  upon  conviction,  be  punished  by  imprisonment  in  the  county  jail 
not  less  than  three  months  nor  more  than  one  year,  or  by  a  fine  not  ex- 
ceeding one  thousand  dollars,  or  by  both  such  fine  and  imprisonment. 
2  R.  S.,  694,  §  21. 

"  It  is  a  well-settled  rule  of  law  that  a  person  can  not  be  compelled, 
under  any  circumstances,  to  answer  a  question  where  the  answer  would 
convict  or  tend  to  convict  the  person  of  a  crime.  Ladies,  your  secrets 
are  with  yourselves,  and  yourselves  alone,  whether  in  the  street,  at  your 
homes,  or  as  a  witness,  and  you  need  answer  no  question  when  the 
answer  would  in  any  way  tend  to  harm  you,  as  stated  above,  or  to  make 


CRIMINAL  LIABILITY.  451 

and  might  well  be  calculated  to  strongly  influence  the' 
minds  of  the  jury.  Justice  Miller,  of  the  supreme  court, 
said :  "  The  circular  was,  I  think,  competent  as  a  decla- 
ration of  the  prisoner  that  he  made  a  specialty  of  this 
business,  and  was  versed  and  skilled  in  regard  to  it. 
It  corroborated  the  proof  introduced  upon  the  trial, 
and  was  a  statement  of  himself  to  the  effect  that  he 
made  it  a  part  of  his  business  to  attend  to  cases  of  this 
kind.  With  evidence  that  an  abortion  had  been  pro- 
cured while  deceased  was  under  prisoner's  charge,  his 
own  advertisement  that  he  was  ready  to  perform  opera- 
tions of  such  a  character  certainly  tended  to  strengthen 
the  testimony  already  introduced,  and  was  clearly  ad- 
missible." * 

In  the  case  of  Commonwealth  vs.  Brown  f  two 
women  appeared  upon  the  trial  and  testified  positively 
to  the  details  of  the  procurement  of  abortions  upon 
them.  A  police  officer  appeared  and  testified  as  to  the 
arrest  of  the  defendant  and  produced  the  instruments 
in  court  which  he  had  found  at  the  defendant's  office, 

you  liable  under  this  statute  to  a  criminal  action.  And,  ladies,  should 
you  ever  require  legal  assistance  in  any  of  these  matters,  of  course 
employ  such  counsel  as  you  think  proper ;  but,  if  you  are  not  pecuniarily 
able,  or  too  delicate  to  act  in  the  matter,  notify  me,  and  I  will  protect 
you  at  my  own  expense. 

(Signed.)  "  Dr. 

"  s ,  N.  Y." 

*  Weed  vs.  People,  3  Thomp.  &  C,  60. 
f  Com.  vs.  Brown,  121  Mass.,  60. 


452   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

also  a  speculum  chair.  Experts  testified  that  most  of 
the  instruments  exhibited  were  adapted  to  procuring 
the  abortion  of  pregnant  women,  although  none  of  them 
could  be  said  to  be  so  exactly  designed  for  that  pur- 
pose as  not  to  also  be  appropriate  for  use  in  necessary 
and  lawful  acts  of  surgery. 

The  defendant  in  his  own  behalf  testified  that  none 
of  the  instruments  exhibited  were  adapted  to  use  in 
producing  abortion,  bu.t  were  all  in  common  use  in  law- 
ful and  necessary  surgical  operations ;  he  then  explained 
to  the  jury  the  use  and  purpose  of  each  instrument  and 
of  the  speculum  chair.  He  then  offered  to  read  to  the 
jury  from  books  of  medical  authority  to  substantiate 
his  testimony,  but  was  not  permitted  to  do  so.  In 
answer  to  the  evidence  of  the  two  women  above  re- 
ferred to,  he  testified  that  the  first  one  came  to  him  to 
be  treated  for  a  tumor  on  the  neck  of  her  womb,  and 
that  she  did  not  think  she  was  pregnant;  that  he  ex- 
amined and  treated  her  medicinally  and  surgically  for  a 
tumor  which  he  discovered  on  the  neck  of  her  womb; 
and  that  he  gave  her  no  medicine  capable  of  producing 
an  abortive  effect,  nor  did  he  use  any  instruments  for 
the  purpose  of  producing  an  abortion.  In  answer  to 
the  evidence  of  the  second  woman,  he  testified  that  she 
came  to  his  ofiiee,  in  company  with  a  man,  who  stated 
to  him  that  the  woman  had  been  operated  upon  by 
a   midwife   to   procure   an   abortion,   and   that   at  the 


CKIMINAL  LIABILITY.  453 

request  of  the  man  he  undertook  to  treat  the  woman, 
medicinally  and  surgically,  to  relieve  her  of  a  dead 
foetus. 

The  police  officer,  above  referred  to,  testified  that  on 
the  day  after  arresting  the  defendant,  he  took  him  be- 
fore the  two  women  and  asked  them  if  they  knew  the 
prisoner,  and  if  they  had  been  operated  upon  by  him,  to 
both  of  which  questions  they  answered  in  the  affirma- 
tive, and  that  the  prisoner  then  asked  them  if  they 
had  previously  been  operated  upon  by  another  per- 
son. The  prisoner's  counsel  objected  to  the  admission 
of  this  evidence,  but  it  was  admitted  on  the  ground 
heretofore  referred  to — viz.,  that  it  was  an  admis- 
sion against  interest.  The  court  very  clearly  stated 
the  rule  applicable  in  the  following  words :  "  The  rule 
is  that  a  statement  made  in  the  presence  and  hearing 
of  a  defendant,  to  which  no  reply  is  made,  is  not  ad- 
missible against  him,  unless  it  appears  that  he  was  at 
liberty  to  make  a  reply,  and  that  the  statement  was 
made  by  such  person  and  under  such  circumstances  as 
naturally  to  call  for  a  reply  unless  he  intends  to  admit 
it.  But  if  he  makes  a  reply  wholly  or  partially  ad- 
mitting the  truth  of  the  facts  stated,  both  the  state- 
ment and  the  reply  are  competent  evidence."  The  court 
in  applying  the  rule  expressed  the  opinion  that  the 
jeply  was  such  as  to  justify  an  inference  that  the  de- 
fendant  admitted   the   truth  of  the   statements,   and 


454    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

therefore  that  the  statements  both  of  the  women  and  of 
the  defendant  were  admissible. 

In  regard  to  the  effect  and  importance  wliich  the 
jury  should  give  the  evidence  relative  to  the  surgical 
instruments,  the  trial  judge  properly  instructed  them 
as  follows :  "  The  possession  by  a  physician  of  surgical 
instruments  adapted  to  use  in  procuring  the  miscar- 
riage of  pregnant  women  would  be  explained  consist- 
ently with  that  physician's  innocence  of  any  intention 
to  use  them  for  unlawfully  procuring  miscarriages,  if 
they  were  instruments  also  adapted  equally  to  other 
and  legitimate  uses  in  surgery  or  midwifery,  unless  their 
extraordinary  number  and  variety  was  in  more  than 
ordinary  proportion  to  the  whole  number  and  variety 
of  surgical  instruments  possessed  by  him,  or  the  exi- 
gencies of  his  practice  furnished  him  occasion  for 
using;  but  the  significance,  as  evidence,  of  the  posses- 
sion of  an}^  number  or  variety  of  surgical  instruments 
adapted  especially  to  procuring  miscarriage  of  pregnant 
women,  would  more  or  less  depend  upon  circumstances, 
usual  or  unusual,  ordinary  or  extraordinary,  attend- 
ing the  mode  of  their  possession  and  keeping,  and  the 
exigencies  of  such  physician's  practice." 

The  jury  in  this  case  rendered  a  verdict  of  guilty, 
which  the  supreme  court,  upon  appeal,  refused  to  inter- 
fere with. 

Similar  to  the  rule  of  evidence  admitting  the  cir- 


CRIMINAL  LIABILITY.  455 

cular  and  the  instruments  in  evidence  in  the  cases  above 
examined  is  that  nnder  which  a  mother-in-law  was  per- 
mitted to  testify  that  defendant  had  a  conversation 
with  her  in  which  the  defendant,  after  being  informed 
that  deceased  was  pregnant  and  desired  to  be  relieved 
of  her  child,  said,  "  Send  her  to  me,"  and  stated  in 
effect  that  she  had  operated  successfully  five  times  on 
one  person.  Upon  further  questioning  the  witness  tes- 
tified that  she  informed  her  daughter-in-law  of  this 
conversation  before  leaving  home  to  undergo  the  treat- 
ment which  proved  fatal.*  And  so,  in  another  case,f 
the  State  was  permitted  to  show  by  four  different  wit- 
nesses conversations  had  with  the  defendant  extending 
through  a  period  of  four  years  preceding  the  act  of 
which  defendant  was  accused,  showing  a  willingness  and 
a  preparedness  to  commit  the  crime  for  which  she  was 
then  on  trial.  The  evidence  showed  that  to  one  wit- 
ness defendant  stated  that  she  had  the  instruments 
with  which  to  produce  abortion,  and  had  got  rid  of 
a  number  of  children;  that  she  showed  witness  the  in- 
struments, at  the  same  time  saying  that  if  she  wanted 
any  help  she  could  help  her.  To  another  she  stated 
that  she  had  committed  abortion,  and  could  do  it 
again;  that  she  had  the  instruments  to  use  in  doing 
it.     And  to  another  she  stated  her  terms  for  perform- 

*  Com.  vx.  Holmes,  103  Mass.,  440. 

t  People  vs.  Session?,  68  Mich.,  594,  2G  N.  W.  Eep.,  291. 


456    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ing  such  services^  which  she  then  proffered  to  the  wit- 
ness, who  was  in  the  family  way,  and  told  her  she  had 
the  instruments  for  the  purpose.  The  admissibility  of 
this  evidence  was  vigorously  contested,  but  the  court 
held  it  admissible  and  proper. 

Dying  Declarations. — From  the  very  nature  of  this 
class  of  cases,  dying  declarations,  and  facts  and  state- 
ments forming  parts  of  the  res  gestce,  are  often  essen- 
tial features  in  the  chain  of  evidence  upon  which  the 
jury  is  asked  to  base  a  verdict  of  guilt.  It  is  therefore 
desirable  to  examine  more  particularly  the  character 
of  evidence  of  this  sort  which  is  admissible  and  proper  to 
prove  the  case. 

It  has  been  heretofore  shown  that  dying  declarations 
must  be  made  while  in  extremis^  with  a  realization  of 
the  approaching  end  and  after  hope  of  recovery  is 
abandoned.  Also  that  they  are  admissible  only  in  cases 
of  homicide.  Whether  this  condition  does  not  entirely 
bar  out  dying  declarations  in  abortion  cases  is  a  ques- 
tion upon  which  the  courts  of  different  States  differ, 
some  of  them  holding  that  they  are  not  admissible  in 
this  class  of  cases  at  all.  Among  the  latter  are  the 
courts  of  Pennsylvania,*  Ohio,f  and  Kew  York. J  In 
New  York,  however,  the  legislature  has,  since  the  deci- 

*  Railing  vs.  Com.,  110  Pa.  St.,  100. 
•f  State  vs.  Harper,  35  Ohio  St.,  78. 
\  People  vs.  Davi?,  56  N.  Y.,  95. 


CRIMINAL  LIABILITY.  45Y 

sion  referred  to,  made  dying  declarations  admissible  in 
this  class  of  eases.  In  these  States  the  reasoning  of 
the  court  is  that  the  crime  for  which  the  defendant  is 
being  tried  is  not  the  killing  of  the  patient,  but  the 
procurement  of  the  abortion,  and  that  the  incidental 
death  of  the  patient  does  not  change  the  nature  of  the 
prosecution,  but  merely  aggravates  the  penalty.  The 
better  opinion  probably  is  that  the  death  of  the  patient 
from  the  unlawful  act  of  the  accused  gives  to  the  offense 
the  character  of  a  felonious  homicide,  and  that  the  rea- 
son for  applying  the  rule  is  quite  as  plain  as  in  cases  of 
•any  other  sort  of  homicide.* 

A  dying  declaration,  in  order  to  be  competent,  must, 
however,  be  a  statement  of  material  facts  concerning 
the  cause  and  circumstances  of  the  homicide.  Thus, 
when  deceased  said,  "  0  Aleck,  what  have  we  done  ? 
I  shall  die ! "  the  statement  was  held  inadmissible,  as  it 
contained  no  reference  to  the  cause  of  death,  and  was 
not  made  for  the  purpose  of  explaining  any  act  con- 
nected with  the  death,  f  ISTor  is  it  sufficient  that  the 
statement  should  relate  to  a  distinct  fact  or  transac- 
tion which  is  the  remote  cause  of  the  act  producing  the 
death.  Thus,  in  the  case  where  the  theory  of  the  prose- 
cution was  that  the  defendant  had  seduced  the  deceased, 
the  following  dying  statement  was  held  inadmissible: 

*  Montgomery  vs.  State,  80  Ind.,  338,  41  Am.  Rep.,  815. 
f  People  vs.  Olmstead,  30  Mich.,  431. 


458    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

"  He  is  the  cause  of  my  death.  Oh,  those  horrible  in- 
struments !  Laws  is  the  cause  of  my  death,  he  is  my 
murderer.  They  abused  me  terribly."  In  regard  to 
the  nature  of  this  statement,  the  court  said :  "  These 
declarations  did  not  necessarily  refer  to  any  attempt  to 
produce  an  abortion.  They  are  as  plainly  referable  to 
the  former  relations  of  the  parties.  If  it  be  true  that 
the  defendant  had  gotten  the  deceased  with  child,  then 
her  declarations  were  such  as  she  might  naturally  make 
in  her  extremity,  about  her  seducer,  without  intending 
to  charge  him  with  any  more  than  her  seduction.  The 
expression,  ^  Oh,  those  horrible  instruments ! '  might 
indicate  that  instruments  were  used,  but  in  no  wise 
charges  the  defendant  with  having  used  them  or  aided 
in  their  use."  *  In  another  case  f  the  court,  in  com- 
menting generally  upon  the  admissibility  of  this  class 
of  evidence,  said:  "The  rule  that  dying  declarations 
should  point  distinctly  to  the  cause  of  death,  and  to 
the  circumstances  producing  and  attending  it,  is  one 
that  should  not  be  relaxed.  Declarations  at  the  best 
are  uncertain  evidence,  liable  to  be  misunderstood,  im- 
perfectly remembered,  and  incorrectly  stated.  As  to 
dying  declarations,  there  can  be  no  cross-examination. 
The  condition  of  the  declarant  in  his  extremity  is  often 
unfavorable  to  clear  recollection,  and  to  the  giving  of 

*  State  vs.  Baldwin,  19  Iowa,  714,  45  N.  W.  Rep.,  29Y. 
f  State  vs.  Center,  35  Vt.,  378. 


CRIMINAL  LIABILITY.  459 

a  full  and  complete  account  of  all  the  particulars  which 
it  might  be  important  to  know.  Hence,  all  vague  and 
indefinite  expressions,  all  language  that  does  not  dis- 
tinctly point  to  the  cause  of  death  and  its  attending 
circumstances,  but  requires  to  be  aided  by  inference  or 
supposition  in  order  to  establish  facts  tending  to  crimi- 
nate the  (defendant),  should  be  held  inadmissible." 

Res  Gestae. — In  regard  to  the  admissibility  of  state- 
ments as  part  of  the  res  gestce,  the  general  rule  has  been 
observed  that  the  statements  must  be  contemporaneous 
with  the  main  fact  under  consideration.  The  meaning 
of  the  term  contemporaneous,  as  here  used,  is  not  neces- 
sarily that  the  conversation  must  have  taken  place  at 
the  same  moment  that  the  operation  was  performed. 
Thus,  when  deceased  left  defendant's  office,  where  the 
operation  had  presumably  just  been  performed,  walked 
across  the  street,  and  met  a  friend  who  accompanied 
her  to  that  spot,  and  said,  "  Oh,  dear,  I  feel  weak ! " 
the  exclamation  was  held  admissible.*  This  exclama- 
tion, however,  might  have  been  admitted  also  upon  the 
ground  that  it  was  an  expression  of  bodily  feelings. 
Also,  conversations  had  relative  to  the  purpose  of  an 
intended  visit  to  the  physician's  office  before  departure 
are  held  admissible  to  show  that  the  patient  had  formed 
the  purpose  of  going  to  the  defendant  to  have  an  abor- 


*  Com.  v,f.  Fenno,  134  Mass.,  217. 
■SO 


460    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

tion  performed.  Thus  it  was  held  proper  to  allow  the 
roommate  of  deceased  to  testify  that  on  the  day  the 
abortion  was  alleged  to  have  been  committed,  she  loaned 
deceased  ten  dollars,  and  to  state  what  deceased  said 
she  was  going  to  do  with  it,  and  where  she  was  going 
that  afternoon,  and  for  what  purpose.  It  was  also  held 
proper  to  permit  the  witness  to  testify  as  to  conversa- 
tions had  with  deceased  on  the  Wednesday  and  Friday 
before  the  Saturday  on  which  the  operation  was  sup- 
posed to  have  been  performed.  In  these  conversations 
witness  testified  that  deceased  said  that  she  under- 
stood or  had  found  out  that  she  was  in  the  family  way ; 
that  she  had  been  to  see  the  defendant  about  it;  had 
been  or  was  going  to  defendant  to  get  some  medicine 
or  a  syringe;  that  she  had  made  an  arrangement  with 
the  defendant  to  have  an  operation  performed  upon  her ; 
was  to  give  twenty-five  dollars,  and  was  to  return  to 
the  defendant's  on  Saturday  afternoon  for  the  purpose 
of  having  instruments  used  to  get  rid  of  the  child. 
Upon  the  admissibility  of  these  conversations  the  su- 
preme court  said :  "  It  was  certainly  competent  to  prove 
that  the  deceased  went  to  the  house  of  the  defendant 
at  the  time  it  was  charged  in  the  information  the  abor- 
tion was  produced.  Upon  the  authorities,  her  intent 
or  purpose  in  going  there  might  be  shown  by  her  decla- 
rations then  made  or  previously  made;  because  such 
declarations  become  part  of  the  res  gestce.    For  it  is  evi- 


CRIMINAL  LIABILITY.  461 

dent  the  declarations  were  connected  with  the  act  of 
her  going  to  the  defendant ;  were  expressive  of  the  char- 
acter, motive,  or  object  of  her  conduct;  and  they  are  to 
be  regarded  as  verbal  acts  indicating  a  present  purpose 
or  intention,  and  therefore  are  admitted  in  proof  like 
any  other  material  facts."  * 

In  the  case  of  Hays  vs.  State  f  the  evidence  showed 
that  deceased  left  her  home  and  came  to  the  house  of 
the  defendant,  where  she  was  operated  upon  to  produce 
an  abortion.  After  the  operation  was  performed  a 
physician  was  called  to  attend  her.  This  physician 
was  subsequently  placed  on  the  witness  stand  by  the 
defense  and  testified  that  deceased  complained  of  a 
pressing  and  burning  in  the  stomach;  he  also  testified 
that  she  said  that  she  had  "  been  taking  some  stuff," 
and  that  on  the  way  from  her  home  to  the  defendant's 
house,  a  distance  of  six  or  seven  miles,  something  like 
a  lump  dropped  from  her,  and  that  she  did  not  know 
what  was  the  matter  with  her.  In  regard  to  the  ad- 
missibility of  this  evidence  the  court  held  that  such 
part  of  her  statements  as  related  to  her  then  condition, 
the  seat  of  her  pain,  its  character  and  extent,  and  any 
expression  of  mental  or  bodily  feelings  was  admissible 
and  proper;  but  that  which  she  stated  regarding  her 
having  "  been  taking  some  stuff  "  and  what  happened 

*  State  vs.  Dickin?on,  41  Wis.,  299. 
t  Hays  vs.  State,  40  Md.,  633. 


462    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

to  her  on  her  Journey  was  a  mere  narrative  of  what 
had  taken  place  before  the  physician  visited  her,  and  was 
not  legally  admissible,  either  as  a  dying  declaration  (the 
deceased  not  having  been  shown  to  be  in  extremis  when 
the  statement  was  made)  or  as  part  of  the  res  gestce. 

Conditions  Existing  Subsequent  to  Alleged  Opera- 
tion Admissible. — Facts  and  conditions  existing  subse- 
quent to  the  alleged  operation,  but  which  tend  to  ex- 
plain the  patient's  condition,  are  also  relevant  and  may 
be  shown  upon  trial.  It  was  accordingly  held  proper 
to  permit  a  witness  to  state  that  she  had  been  sent 
for  the  day  before  deceased's  death  to  wash  her  and 
change  her  clothes,  and  that  she  found  blood  stains 
upon  the  bed  and  clothing,  and  that  there  was  a  peculiar 
offensive  odor  which  she  had  never  noticed  before  at 
any  time  or  place,  although  she  had  noticed  something 
like  it.*  And  so,  a  witness  was  permitted  to  testify 
that  about  the  middle  of  February  (the  operation  being 
alleged  to  have  been  committed  about  the  middle  of 
January)  she  slept  one  night  in  the  same  bed  with  the 
complaining  witness,  who  looked  unusually  pale  and 
feeble,  and  sighed  and  groaned  a  good  deal;  that  the 
witness  made  the  bed  next  morning  and  saw  red  stains 
upon  it,  through  the  feather  bed  and  upon  the  straw 
bed,  which  she  thought  were  quite  recent,  and  some  of 

*  People  vs.  Olmstoad,  30  Mich  ,  431, 


CRIMINAL  LIABILITY.  463 

them  more  recent  than  others.  And  another  witness 
in  the  same  case  was  permitted  to  testify  that  she  lived 
in  the  same  house  with  complaining  witness;  that 
about  January  20th  complaining  witness  was  confined 
to  her  bed  and  that  witness  was  called  to  aid  her  and 
found  that  she  had  fainted ;  that  after  she  began  to  get 
well,  witness  found  her  washing  stains  from  the  tick 
of  her  feather  bed,  and  noticed  stains  upon  her  straw 
bed.  Eegarding  the  admissibility  of  this  evidence  the 
court  said :  "  The  objection  that  the  facts  occurred  or 
appearances  were  observed  a  month  after  the  alleged 
abortion  does  not  render  the  evidence  incompetent, 
though  it  may  affect  its  weight.  That  they  were  not 
connected  with  the  abortion  we  can  not  presume.  We 
can  not  know  that  the  result  of  the  injury  did  not  con- 
tinue thus  long." 

Effect  of  Proving  an  Alibi. — An  element  of  defense 
sometimes  available  is  that  of  an  alibi,  or  the  proving 
by  the  defendant  that  he  was  at  another  place  than 
that  at  which  the  crime  was  committed  at  the  time  of 
the  performance  of  the  criminal  act.  The  effect  of 
such  evidence  is  admirably  shown  in  the  case  of  Com- 
monwealth vs.  Snow.*  Here  the  woman  upon  whom 
the  abortion  was  alleged  to  have  been  performed  testi- 
fied positively  that  the  operation  was  performed  on 

*  Com.  vs.  Snow,  116  Mass.,  47. 


464    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

May  20th;  "that  she  knewit  was  upon  that  day;  that  she 
set  it  down  in  her  diary  upon  the  evening  of  that  day  or 
the  next  morning;  that  she  had  seen  the  memorandum 
upon  her  diary  a  number  of  times  since  then,  the  last 
time  within  a  week  prior  to  her  testimony." 

The  woman's  sister,  also  the  father  of  her  child, 
each  testified  that  May  20th  was  the  day  upon  which 
the  operation  was  performed.  The  former  testified  that 
her  sister  left  home  that  day  to  have  the  operation  per- 
formed, and  the  latter  testified  that  he  took  the  com- 
plaining witness  to  defendant  upon  that  day,  and  that 
defendant  performed  an  operation  upon  her  with  an 
instrument. 

The  defendant  introduced  evidence  tending  to  show 
that  upon  May  19th,  20th,  and  21st  he  was  more  than 
one  hundred  miles  distant  from  the  place  where  the 
operation  was  alleged  to  have  been  performed.  The 
court,  in  instructing  the  jury  upon  the  weight  and  effect 
they  should  give  this  conflict  of  evidence,  instructed 
them  that  the  exact  day  was  not  material;  that  "i:^ 
the  jury  were  satisfied  that  the  witnesses  for  the  gov- 
ernment were  in  error  as  to  the  date  stated  by  them, 
this  wa(S  a  proper  matter  to  be  considered  upon  the 
question  of  the  degree  of  credit  they  were  entitled  to 
as  to  other  matters;  and  if  this,  either  alone  or  in  con- 
nection with  other  evidence,  caused  the  jury  so  far 
to  doubt  as  to  their  truth  and  the  reliability  of  their 


CRIMINAL  LIABILITY.  465 

testimony  in  other  matters  that  they  were  not  satisfied 
beyond  doubt  that  the  defendant  did  perform  the  opera- 
tion as  alleged,  then  they  should  acquit  the  defendant." 
The  supreme  court,  in  reviewing  this  case,  said :  "  These 
rulings  and  instructions  were  right.  If  the  alibi  was 
satisfactorily  proved,  it  was  for  the  jury  to  say  what 
effect  it  ought  to  have  upon  the  testimony  of  the  wit- 
nesses for  the  prosecution.  It  might  discredit  them 
altogether.  If  it  did  not  have  that  effect,  then  it  re- 
quired an  inference  of  some  mistake  on  their  part, 
either  as  to  the  person  who  performed  the  operation,  or 
the  true  date  of  its  performance.  Their  testimony  was 
no  more  positive  as  to  the  date  than  it  was  as  to  the 
person;  and  they  were  at  least  quite  as  liable  to  have 
made  a  mistake  as  to  the  true  date  as  they  were  in 
regard  to  the  identity  of  the  person.  But  in  any  respect 
it  was  entirely  a  question  of  fact  for  the  jury,  and  was 
rightly  left  to  them  to  decide." 

Illustrations. — Having  generally  reviewed  the  law 
relative  to  this  class  of  cases,  the  chapter  will  be  brought 
to  a  close  with  a  brief  examination  of  the  evidence  as 
shown  in  the  reported  cases  upon  which  juries  have 
based  their  verdicts  in  several  instances. 

The  statute  under  which  the  case  of  State  vs.  Van 
Zile  *  was  prosecuted  provides  that  any  person  who 

*  People  vs.  Van  Zile,  73  Hun,  534,  26  N.  Y.  Supp.,  390. 


466    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

with  intent,  etc.,  "  either,  first,  prescribes,  supplies,  or 
administers  to  a  woman,  whether  pregnant  or  not,  or 
advises  or  causes  a  woman  to  take  any  medicine,  drug,  or 
substance ;  or,  second,  uses,  or  causes  to  be  used,  any  in- 
strument or  other  means,  is  guilty  of  abortion,  and  is 
punishable,  etc."  The  evidence  in  this  case  shows  that 
deceased,  in  company  with  a  young  man,  went  to  de- 
fendant's oiSce  for  the  purpose  of  having  deceased  ex- 
amined to  determine  whether  or  not  she  was  pregnant. 
Defendant  made  an  examination,  announced  that  the 
girl  was  pregnant,  and  advised  the  young  man,  who 
for  the  sake  of  convenience  will  be  hereafter  designated 
A.,  to  marry  her.  For  the  examination  defendant 
charged  and  received  twenty-five  dollars.  Three  days 
afterward,  and  on  the  eleventh  day  of  November,  defend- 
ant and  A.  met  at  a  drug  store,  and,  after  a  conversation 
in  the  corner,  which  was  not  heard  by  the  clerk,  defend- 
ant asked  for  pen  and  ink  and  paper,  and  wrote  a  pre- 
scription, which  he  gave  to  the  drug  clerk  and  said: "Put 
it  up  and  give  it  to  this  young  man."  The  prescription 
specified  several  drugs,  which  were  required  to  be  com- 
pounded and  made  into  twenty  capsules,  one  of  which 
was  to  be  taken  after  each  meal.  This  compound  was 
pronounced  by  a  professor  of  materia  medica  to  be  an 
abortive  mixture.  On  December  19th  deceased  had  a 
miscarriage  and  sent  for  defendant.  Upon  his  arrival 
the  following  conversation  took  place,  so  he  testified: 


CRIMINAL  LIABILITY,  467 

"  The  girl  said,  '  You  don't  remember  me  ? '  And  I 
said, '  No ;  who  are  you  ?  '  And  she  said,  '  I  am  the  girl 
that  A.  had  at  your  office.'  And  I  says,  '  What  is  your 
trouble?'  and  she  said,  *I  am  all  through  my  trouble.' 
'  When  did  it  occur  ?  '  and  she  says,  '  Last  night.'  "  The 
girl  became  worse,  and  on  the  24th  of  December  the 
family  physician  was  called  in,  who  testified  that  the 
following  conversation  took  place  between  himself  and 
defendant.  "  He  (defendant)  told  me  that  he  had 
been  called  into  the  case,  I  think  the  Thursday  previous, 
and  that  she  had  been  getting  rapidly  worse,  and  was 
now  in  a  very  bad  condition.  He  did  not  seem  to  un- 
derstand what  was  the  matter — what  the  trouble 
was,"  To  the  question,  "  Did  he  say  so  ?  "  the  family 
physician  replied,  "  He  said  so."  On  the  following  day 
the  girl  died.  Defendant  went  to  the  druggist  and 
told  him  that  the  girl  had  died,  and  he  thought  if  the 
druggist  would  lend  him  two  hundred  and  fifty  dollars 
he  could  pay  the  funeral  expenses  and  in  that  way 
settle  with  and  satisfy  the  mother.  That  night  de- 
fendant fled  from  the  city  and  remained  absent  for 
about  three  months. 

The  jury  rendered  a  verdict  of  guilty.  The  gen- 
eral term  of  the  supreme  court,  in  reviewing  the  case, 
said :  "  A  careful  examination  of  the  testimony  leaves 
no  doubt  of  the  guilt  of  the  defendant.  While  it  is 
true  that  the  evidence  is  circumstantial,  and  leaves  the 


468    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

question  of  guilt  to  be  determined  by  inferences  drawn 
from  establislied  facts,  yet  the  facts  proved  are  not 
only  entirely  inconsistent  with,  the  innocence  of  the 
defendant,  but  they  can  be  reconciled  upon  no  theory 
except  that  of  guilt." 

The  case  of  Solander  vs.  Peoj)le  *  is  also  one  in 
which  there  was  no  direct  evidence  of  the  commission  of 
the  crime,  and  yet  it  is  one  in  which  the  circumstances 
point  so  strongly  to  the  guilt  of  the  accused  as  to  ex- 
clude all  reasonable  doubt  as  to  her  guilt.  The  prin- 
cipal witness  was  a  man,  who,  for  convenience,  will  be 
designated  K.  This  witness  testified  that  about  three 
weeks  before  deceased's  death  he  procured  some  medi- 
cine from  IDenver  at  her  request  for  the  purpose  of  pro- 
ducing an  abortion,  and  that  she  took  the  medicine. 
That  a  little  more  than  two  weeks  afterward,  on 
Thursday,  deceased  went  to  see  defendant,  and  that  on 
the  way  home  she  told  him  that  she  had  visited  defend- 
ant for  the  purpose  of  employing  her  to  procure  an 
abortion,  and  that  defendant  had  stated  that  it  would 
be  necessary  to  use  an  instrument  and  to  procure  medi- 
cine from  St.  Louis,  and  that  she  would  charge  thirty 
dollars  for  the  services.  K.  further  testified  that  on 
the  following  Saturday  he  returned  with  deceased,  a 
distance  of  some  eight  miles,  to  defendant's  office,  and 

*  Solander  vs.  People,  2  Colo.,  48. 


CRIMINAL  LIABILITY.  469 

that  defendant  and  deceased  were  alone  about  an  hour ; 
that  defendant  and  K.  then  returned  with  deceased  to 
her  home,  and  that  defendant  remained  there  until 
Monday  morning.  Witness  said  that  defendant  left 
some  powders  with  deceased  Monday  morning,  and  that 
he  gave  deceased  some  of  them,  and  that  after  taking 
each  powder  she  fainted.  Next  day  deceased  died. 
Shortly  before  her  death,  however,  the  witness  K.  went 
for  defendant  and  told  her  that  deceased  desired  to  see 
her.  Witness  testified  to  a  conversation  which  then 
took  place  between  him  and  defendant  in  which  de- 
fendant disclosed  knowledge  of  deceased's  condition, 
and  of  the  nature  of  her  illness.  That  defendant  stated 
that  deceased  had  been  taking  medicine  from  Denver, 
and  that  if  she  should  die  that  medicine  would  be 
the  cause  of  her  death;  that,  defendant  said,  would 
clear  her.  Witness  testified  that  defendant  inquired 
for  the  foetus  which  had  come  from  deceased,  and  re- 
quested him  to  take  it  away,  as  inquiry  might  be  made 
for  it.  Witness  testified  that  on  the  following  day  he 
returned  with  defendant  to  her  home  and  that  she 
then  told  him  that  she  wanted  to  get  a  certain  man, 
naming  him,  for  her  lawyer,  and  that  she  wanted  to 
get  two  certain  doctors,  who  were  good  friends  of  hers, 
to  go  over  for  the  examination,  and  that  she  would 
be  all  right;  and  that  if  any  one  should  ask  witness 
what  was  the  matter  he  should  say  that  he  did  not  know. 


470    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

There  was  expert  evidence  offered  to  show  that  death 
was  caused  by  an  attempt  to  produce  an  abortion,  and 
that  an  instrument  was  used  for  that  purpose.  Evi- 
dence was  also  adduced  by  the  State  that  a  bougie, 
broken  into  three  pieces,  was  found  upon  the  premises 
of  the  deceased,  and  that  the  injuries  observed  in  the 
womb  of  deceased  might  have  been  produced  by  that 
instrument;  also  that  the  powders  left  with  deceased 
bore  a  striking  resemblance  to  gossypium,  and  that 
the  effect  of  the  drug  was  abortionary.  A  witness 
testified  that  when  the  bougie  was  found  defendant  dis- 
claimed any  knowledge  of  it,  and  said  she  did  not  know 
what  instrument  was  used  for  procuring  abortions ;  that 
she  had  never  seen  one.  The  coroner  testified  that  at 
the  inquest  defendant  told  him  that  she  supposed  de- 
ceased was  laboring  under  prolapsus  uteri,  and  that 
she  was  treating  deceased  for  that,  but  that  he  saw  no 
indications  in  the  body  of  deceased  of  prolapsus  uteri. 
Defendant  took  the  witness  stand  in  her  own  behalf 
and  denied  having  used  any  instrument,  and  also  that 
she  had  advised  it.  She  admitted  having  given  pow- 
ders, but  denied  that  they  were  gossypium,  and  averred 
that  they  were  not  intended  to  produce  abortion. 

Among  other  instructions,  the  court  gave  the  jury 
the  following :  "  Neither  is  it  necessary  that  it  should 
appear  by  the  evidence  that  the  prisoner,  with  her  own 
hands,  used  any  instrument  upon  the  person  of  de- 


CRIMINAL  LIABILITY.  4Y1 

ceased,  or  that  with  her  own  hands  prisoner  adminis- 
tered to  the  deceased  any  drug  or  substance.  If  pris- 
oner furnished  any  instrument  to  deceased  or  to  any 
other  person  with  intent  that  deceased  or  any  other 
person  should  use  such  instrument  for  the  purpose  of 
procuring  the  miscarriage  of  deceased,  she  being  then 
pregnant,  or  if  prisoner  provided  any  noxious  drug  or 
substance  with  intent  that  deceased,  being  then  preg- 
nant, should  administer  the  drug  or  substance  herself, 
or  that  any  other  person  should  administer  it  to  her 
in  order  to  produce  the  miscarriage  of  the  deceased, 
prisoner  thereby  constituted  the  deceased,  or  the  per- 
son to  whom  such  instrument  or  drug  was  delivered  or 
provided,  her  agent,  and  is  accountable  for  all  the  acts 
of  such  person  done  in  pursuance  of  the  agency.  And 
if  such  person,  whether  the  deceased  herself  or  any 
other,  used  such  instrument  upon  the  person  of  de- 
ceased, or  administered  such  drug  to  deceased  with  the 
intent  to  produce  the  miscarriage  of  deceased,  and  by 
reason  of  such  treatment  the  deceased  came  to  her 
death,  the  prisoner  is  guilty  as  charged  in  the  indict- 
ment, even  though  she  was  not  present  at  the  time  of 
the  use  of  the  instrument  or  administration  of  the 
drug." 

The  jury  returned  a  verdict  of  guilty,  and  the  pris- 
oner was  sentenced  to  confinement  in  the  penitentiary 
for  a  term  of  three  vears. 


4Y2    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

The  supreme  court,  in  reviewing  the  case,  approved 
of  the  instruction  above  quoted,  and  also  gave  their 
opinion  that  the  trial  court  had  made  no  error  in  per- 
mitting the  witness  K.  to  testify  to  the  conversation 
had  between  himself  and  deceased  while  returning  from 
their  first  visit  to  defendant.  The  court,  in  discuss- 
ing the  question  of  admissibility  of  this  conversation, 
affirms  the  correctness  of  the  rule  that  a  mere  narra- 
tive of  past  events,  not  made  in  furtherance  of  the 
criminal  design,  is  not  evidence  against  one  who  was 
not  present  when  it  was  uttered,  and  consequently  can 
not  be  repeated  on  the  witness  stand.  But  the  court 
continued:  "Although  the  statement  of  deceased  was 
made  after  the  interview  with  prisoner,  and  was,  in 
one  sense,  a  history  of  a  past  event,  it  was  during  the 
pendency  of  the  criminal  enterprise,  and  closely  attend- 
ant upon  an  act  done  to  promote  the  illegal  purpose. 
If  the  evidence  was  admissible  upon  the  principle  of 
res  gestcB,  as  I  think  it  was,  it  would  not  have  been 
proper  to  exclude  it  upon  the  ground  that  it  was  merely 
a  narrative  of  past  events." 

The  case  of  State  vs.  Clements  *  impresses  one  very 
forcibly  as  illustrating  the  danger  attending  the  pro- 
fessional life  of  the  medical  man.  Here  the  unfortu- 
nate combination  of  circumstances  which  entangled  the 

*  State  vs.  Clements,  15  Or.,  237,  14  Pac.  Rep.,  410. 


CRIMINAL  LIABILITY.  473 

defendant  and  brought  disgrace  and  conviction  upon 
him  is  one  that  is  liable  at  any  time  to  ruin  an  honest 
practitioner  who  has  not  the  opportunity  of  protecting 
himself  by  the  counsel  and  assistance  of  his  reputable 
professional  brothers,  and  it  is  one  against  which 
the  honest  physician  can  not  take  too  great  precaution. 
The  evidence  in  this  case  showed  that  the  deceased 
was  a  young  unmarried  woman  who  had  been  stopping 
for  some  time  at  the  hotel  where  she  died;  that  on  the 
morning  of  her  death  defendant  locked  her  door  and 
passed  out  of  the  hotel,  and  remarked  to  some  one  that 
she  was  sleeping  quietly,  and  that  he  did  not  want  her 
disturbed.  A  few  hours  afterward,  at  about  nine 
o'clock  A.  M.,  defendant  came  back,  and,  upon  going  to 
deceased's  room,  called  some  one  and  stated  that  "  Lena 
was  dying."  The  defendant  was  immediately  arrested 
and  placed  in  charge  of  the  constable.  Upon  leaving 
the  hotel  defendant  told  the  constable  that  he  had  some- 
thing to  show  him  at  his  office.  Upon  arriving  at  the 
office  he  exhibited  to  the  constable  a  foetus  of  which 
he  said  deceased  had  been  delivered.  Shortly  before 
this,  and  at  about  the  time  deceased  was  first  taken 
sick,  the  defendant  exhibited  in  the  drug  store  to  the 
druggist  a  stout  sharpened  quill  about  six  inches  long, 
being  bloody,  and  having  the  appearance  of  having  been 
recently  imbedded  in  living  animal  tissues,  which  he 
claimed  to  have  taken  from  her  room.     He  stated  to  the 


474    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

druggist :  "  I  want  you  to  examine  this.  I  may  need 
it  for  my  protection.  I  am  afraid  this  case  will  get 
me  into  a  scrape  yet.  Some  woman  has  been  using  this 
for  a  criminal  purpose." 

The  post-mortem  examination  showed  that  there  was 
some  abrasion  or  scratching  of  the  interior  walls  of  the 
uterus,  apparently  caused  by  some  rough  instrument, 
but  that  the  injuries  were  slight.  There  was  no  indica- 
tion that  deceased  met  her  death  by  abortion  produced 
by  drugs. 

The  principal  witness  for  the  State  was  the  colored 
cook  of  the  hotel,  who  testified  to  finding  deceased  lying 
upon  the  floor  of  her  room  about  the  time  she  was  taken 
ill,  and,  contrary  to  the  objections  of  defendant's  coun- 
sel and  contrary  to  the  law  of  evidence,  was  permitted 
to  testify  to  the  following  conversation :  "  I  asked  her 
if  the  doctor  had  used  instruments  upon  her.  She  said, 
*  Yes.'  "  This  statement,  it  will  be  seen,  was  not  admis- 
sible as  a  dying  declaration,  nor  was  it  a  part  of  the 
res  gestce,  but  was  mere  hearsay  and  inadmissible.  It 
appeared  also  that  defendant  while  attending  deceased 
misrepresented  the  nature  of  her  illness. 

The  evidence  given  by  defendant  upon  his  own  be- 
half was  that  deceased  applied  to  him  on  August  12th, 
nineteen  days  before  her  death,  to  perform  an  abortion 
upon  her ;  that  he  refused  absolutely  to  do  it ;  that  some 
ten  or  twelve  days  prior  to  her  death  deceased  called 


CRIMINAL  LIABILITY.  475 

upon  him  to  treat  her  professionally  for  some  derange- 
ment of  the  uterus;  that  he  made  an  examination  and 
found  a  sponge  imbedded  in  the  tissues  in  the  mouth  of 
the  womb ;  that  he  used  a  metallic  speculum  and  forceps, 
and  removed  the  sponge;  that  he  found  the  place  occu- 
pied by  the  sponge  lacerated,  the  sponge  covered  with 
pus,  and  very  offensive;  that  he  treated  her  for  about 
six  days,  and  dismissed  the  case.  Defendant  testified 
that  he  did  not  see  deceased  again  until  August  25th, 
when  he  was  called  by  her;  that  she  complained  of 
nausea  of  the  stomach,  and  pains  in  the  abdomen,  and 
upon  being  questioned  denied  having  made  any  attempt 
at  abortion;  that  symptoms  rapidly  disclosed  them- 
selves indicating  labor  pains;  that  he  prescribed  anti- 
abortive  treatment ;  that  there  were  no  other  physicians 
in  reach  with  whom  to  consult,  and  deceased  had  no 
means  to  employ  medical  assistance;  that  he  continued 
such  treatment;  that  deceased  then  informed  him  she 
had  made  an  attempt  to  accomplish  a  miscarriage  by 
inserting  a  quill  into  the  uterus,  and  told  him  where 
the  quill  could  be  found,  and  which  was  shown  to  be 
the  same  quill  before  referred  to;  that  thereafter,  on 
the  night  of  August  30th,  deceased  gave  birth  to  a  dead 
foetus;  that  for  a  considerable  time  prior  to  this  de- 
ceased was  in  such  a  condition  that  to  have  exposed  the 
cause  of  her  illness  would  have  resulted  in  a  nervous 
shock  extremely  dangerous  to  her  life;  that  defendant 

ox 


476    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

removed  the  foetus  and  its  appendages,  and  afterward 
surrendered  them  to  the  officer;  that  he  administered 
opiates  to  deceased,  placed  her  in  bed  for  the  purpose 
of  seciiring  repose,  gave  directions  that  she  should  not 
be  disturbed,  left  the  hotel,  and  went  to  his  breakfast. 
That  upon  returning  in  about  an  hour  afterward,  he 
found  her  dying,  uterine  haemorrhage  having  set  in  dur- 
ing his  absence,  and  caused  her  death. 

The  jury  returned  a  verdict  of  guilty,  and  judg- 
ment was  entered  thereupon.  The  supreme  court,  how- 
ever, upon  reviewing  the  case,  reversed  the  judgment 
and  sent  the  case  back  for  a  new  trial,  because  of  errors 
committed  by  the  court  below.  One  of  these  errors  was 
permitting  the  cook  to  testify  to  the  conversation  be- 
tween himself  and  deceased  which  was  above  referred  to. 
The  result  of  the  second  trial  of  the  case  is  not  known 
to  the  author. 

Another  case  which  shows  to  what  extreme  ver- 
dicts juries  will  sometimes  allow  themselves  to  be  per- 
suaded by  the  great  zeal  that  often  actuates  prosecuting 
attorneys  to  secure  a  conviction,  irrespective  of  the 
merits  of  the  case,  is  that  of  Clarke  vs.  People.*  Here 
the  defendant  was  convicted  of  procuring  an  abortion 
upon  the  deceased,  a  young  unmarried  woman.  There 
was  much  evidence  taken,  but  very  little  of  it  reflects 

*  Clarke  vs.  People,  16  Colo.,  511. 


CRIMINAL  LIABILITY.  477 

unfavorably  upon  the  defendant.  The  substance  of  the 
evidence  of  the  prosecution  was  that  a  miscarriage  had 
taken  place  from  the  effects  of  which  death  ensued; 
that  defendant  was  the  sole  attending  physician  at  the 
time  of  the  abortion  and  for  some  time  prior  and  sub- 
sequent thereto;  that  defendant  burned  the  foetus  in- 
stead of  burying  it;  and  that  in  reply  to  a  question 
propounded  by  the  landlady  of  the  house  where  deceased 
was  stopping,  defendant  stated  that  the  patient  was 
suffering  from  inflammation  of  the  bowels. 

Defendant  testified  that  deceased  first  sought  his 
services  on  the  twenty-fourth  day  of  February,  and 
that  she  was  at  that  time  suffering  from  "  bearing-down 
pains  " ;  that  upon  his  next  visit,  which  occurred  next 
day,  he  cautioned  her  in  reference  to  the  danger  she 
was  incurring,  and  warned  her  against  the  effects  of 
the  course  she  had  entered  upon,  advising  her  that  she 
should  reconcile  herself  to  her  condition  and  let  the  full 
time  elapse  before  birth.  At  the  end  of  this  visit  he 
was  paid  for  his  services  and  considered  himself  dis- 
charged from  the  case.  Defendant  testified  that  a  few 
days  later  he  was  called  again,  and  that  deceased  was 
threatened  with  a  miscarriage;  that  it  was  too  late  to 
prescribe  medicine  to  counteract  the  effect  of  the  drugs 
she  had  previously  taken,  but  that  he  did  prescribe  quiet 
and  rest ;  that,  finding  this  would  not  prevent  the  abor- 
tion, he  did  what  he  could  to  relieve  the  patient  and 


478    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

save  her  life.  It  was  shown  that  on  the  day  before  the 
patient's  death  defendant  informed  her  she  was  not  pro- 
gressing so  favorably  as  he  had  hoped,  and  that  he  de- 
sired a  physician  in  consultation,  and  advised  that  her 
parents  be  notified.  To  both  of  these  propositions  de- 
ceased objected.  Finding  deceased  worse  next  morn- 
ing instead  of  better,  defendant  telegraphed  her  father 
and  sent  ont  for  another  physician,  but,  owing  to  delay, 
the  latter  arrived  only  shortly  before  her  death.  In 
explanation  of  the  burning  of  the  foetus,  defendant  testi- 
fied that  decomposition  had  set  in,  rendering  an  immedi- 
ate disposition  of  it  necessary ;  that  the  patient  required 
liis  immediate  attention,  and  that  there  was  no  other 
man  about  the  premises  to  bury  it,  and  that  burning 
was  the  most  effective  as  well  as  the  most  convenient 
way  to  dispose  of  it. 

It  also  appears  that  deceased,  shortly  before  her 
death,  fully  exonerated  defendant,  and  said  that  he  was 
not  the  cause  of  her  sickness.  It  further  appears  that 
immediately  after  the  death  of  deceased,  defendant  took 
her  effects  to  the  coroner,  and  notified  that  oflQcial  of 
the  cause  and  circumstances  of  her  death. 

How  a  jury  of  intelligent  men  could  have  rendered 
a  verdict  of  guilty  upon  this  evidence  it  is  difficult  to 
understand.  The  forces  of  eloquence  and  personal  mag- 
netism moved  by  a  mistaken  zeal  are  often  potent 
factors  in  working  injustice  and  may  have  been  largely 


CRIMINAL  LIABILITY.  479 

accountable  for  the  termination  of  the  present  suit. 
It  is  extremely  gratifying^,  however,  to  observe  the  whole- 
some check  which  our  higher  courts  place  upon  the  trial 
courts  which  are  sometimes  betrayed  into  a  display  of 
feeling  prejudicial  to  justice.  In  the  present  case  it  is 
believed  that  every  reader  will  heartily  approve  of  the 
sentiment  expressed  by  the  supreme  court,  which,  in  re- 
versing the  judgment,  says :  "  The  crime  charged  is  one 
that  strikes  at  the  foundation  of  our  social  fabric,  and 
is  well  calculated  to  arouse  the  indignation  of  all  right- 
thinking  people;  but  to  allow  this  conviction  to  stand 
would  be  to  violate  the  fundamental  rule  of  the  crimi- 
nal law  fixing  the  quantum  of  proof  necessary  to  sustain 
a  conviction.  We  fully  agree  with  the  attorney-general 
that  prudence  would  have  dictated  the  calling  of  counsel 
at  an  earlier  period  in  the  case;  but  the  neglect  in  this 
particular  can  not  be  taken  as  a  justification  to  the 
verdict  and  judgment  rendered  in  the  court  below." 

At  an  early  period  in  the  examination  of  the  sub- 
ject of  criminal  abortions  in  this  chapter  it  was  stated 
that  the  matter  was  regulated  by  statutes  in  the  several 
States.  The  cases  and  general  rules  of  evidence  which 
have  been  examined  will  be  found  applicable  in  nearly 
every  instance  in  proving  that  the  statute  has  been  vio- 
lated, but  the  exact  act  or  series  of  acts  which  shall  in 
any  given  State  amount  to  the  crime  of  procuring  an 
abortion  can  be  determined  with  certainty  only  by  care- 
fully examining  the  local  statute  regulating  the  matter. 


CHAPTER   IX. 

PRIVILEGED    COMMUNICATIONS. 

Privileged  Matter  Generally. — Upon  the  broad  and 
urgent  ground  of  public  policy  certain  matters  are  held 
so  sacred  in  the  eyes  of  the  law  that  one  can  not  be 
compelled  to  disclose  his  knowledge  relative  thereto, 
even  as  a  witness  in  a  court  of  justice.  Matters  of  this 
sort  may  be  generally  classified  as  follows : 

I.  Political  Matters. — Under  this  head  are  in- 
cluded state  secrets,  oflScial  transactions  and  communi- 
cations between  the  heads  of  departments  of  state  and 
their  subordinate  officers,  and  all  like  communications. 

II.  Judicial  Matters. — Herein  are  included  pro- 
ceedings in  the  jury  room,  consultations  of  judges,  and 
the  like. 

III.  Professional  Communications. — ^Under  this 
head  are  included  all  communications  between  client 
and  counsel  or  attorney  necessarily  made  for  the  purpose 
of  securing  professional  services  or  assistance;  commu- 
nications between  patient  and  physician  or  surgeon  ne- 
cessary to  secure  proper  professional  treatment ;  and  all 
confessions  or  communications  of  like  character  made 

to  one's  spiritual  adviser. 
480 


PRIVILEGED  COMMUNICATIONS.  481 

IV.  Social  Matters. — Under  this  head  are  in- 
cluded all  communications  of  a  confidential  nature  made 
between  husband  and  wife. 

Professional  Communications  at  Common  Law. — At 
common  law  the  protection  accorded  to  professional 
communications  was  in  its  scope  very  limited^  applying 
only  to  the  legal  profession,  nor  does  the  protection 
which  that  profession  enjoyed  seem  to  have  been  as 
full  and  adequate  as  that  now  accorded  to  it  by  the 
courts  and  legislatures.*  The  medical  f  and  clerical  J 
professions  were  both  outside  the  protection  of  the 
common  law,,  both  of  England  and  the  United  States, 
and  whatever  privileges  of  protected  professional  confi- 
dence they  now  enjoy  are  expressly  conferred  by 
statute. 

Statutory  Protection  to  Communications  between 
Physician  and  Patient. — In  recognition  of  the  impor- 
tance of  a  full  and  absolute  confidence  existing  between 
physician  and  patient  in  all  matters  of  professional 
intercourse,  the  legislatures  of  about  half  the  States  ** 

*  Duchess  of  Kingston's  case,  20  Howell's  St.  Tr.,  5*78,  613, 

f  Rex  vs.  Gibbons,  1  C.  and  T.,  91 ;  Broad  vs.  Pitt,  3  C.  and  P.,  518. 
jj.  Baker  vs.  Arnold,  1  Caine's  Rep.,  257. 

*  The  following  States  have  passed  laws  extending  the  privilege  to 
professional  communications  between  physician  and  patient:  Arizona, 
Arkansas,  California,  Colorado,  Idaho,  Indiana,  Iowa,  Kansas,  Michigan, 
Minnesota,  Missouri,  Montana,  Nebraska,  Nevada,  New  York,  North 
Carolina,  North  Dakota,  Ohio,  Oklahoma,  Oregon,  Pennsylvania,  Utah, 
Washington,  Wisconsin,  Wyoming. 


482    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

have  passed  wholesome  laws  which  in  effect  assure  the 
patient  that  the  information  necessarily  imparted  to 
secure  proper  and  legitimate  medical  treatment  shall 
not  be  wrested  from  the  physician  to  whom  he  confided 
it,  even  in  behalf  of  justice.  The  wording  of  the  stat- 
utes upon  the  subject,  as  enacted  by  the  several  States, 
varies  considerably;  in  New  York,  which  was  probably 
one  of  the  first  States  to  recognize  the  need  of  this  sort 
of  protection  to  the  physician  and  patient  by  legislative 
enactment,  the  law  in  force  provides  that : 

"A  person  duly  authorized  to  practise  physic  or 
surgery  shall  not  be  allowed  to  disclose  anj  information 
which  he  acquired  in  attending  a  patient  in  a  profes- 
sional capacity,  and  which  was  necessary  to  enable  him 
to  act  in  that  capacity."  * 

The  restraining  clause  that  the  "physician  or  sur- 
geon shall  not  be  allowed  to  disclose  any  information, 
etc.,"  is  reenacted  almost  verhatim  in  the  States  of 
Iowa,  Michigan,  Pennsylvania,  and  Nebraska;  the 
majority  of  the  States  having  statutes  upon  the  subject 
impose  practically  the  same  restriction  by  using  the 
expression  that  the  physician  "  shall  not  (or  can  not) 
be  examined,"  f  or  "  shall  not  be  a  witness,"  X  or  "  shall 
not  testify."  *    The  statutes  of  four  States,  to  wit,  Indi- 

*  Code  of  Civil  Procedure,  §  884. 

f  California.  Colorado,  Idaho,  Minnesota,  Nevada,  North   Dakota, 
Oregon,  Utah,  and  Washington. 

I  Montana.  *  Ohio  and  Wyoming. 


PRIVILEGED  COMMUNICATIONS.  483 

ana,  Kansas,  Missouri,  and  Oklahoma,  provide  that  a 
physician  shall  not  be  competent  to  testify  as  to  infor- 
mation professionally  obtained,  while  the  statutes  of 
three  States,  to  wit,  Arkansas,*  North  Carolina,  and 
Wisconsin,  provide  that  the  physician  "  shall  not  be  re- 
quired (or  compelled)  to  "  testify. 

The  statutes  in  several  States  expressly  restrict  the 
application  of  the  protection  to  civil  cases. f  Whether 
the  protection  of  the  statute  in  the  absence  of  this 
restriction  extends  to  criminal  cases  is  a  question  which 
has  been  the  subject  of  judicial  decisions,  which  will  be 
examined  in  their  proper  order. 

The  statute  of  iNTorth  Carolina  is  subject  to  the  pro- 
vision that  "the  presiding  judge  of  a  superior  court 
may  compel  such  disclosure  (of  knowledge  profession- 
ally obtained),  if  in  his  opinion  the  same  is  necessary  to 
a  proper  administration  of  justice.'^  While  the  statute 
of  Arizona  provides  that  the  physician  "  can  not  with- 
out the  consent  of  his  patient  be  examined  in  civil  or 
criminal  cases  as  to  any  information  acquired  in  attend- 
ing the  patient  which  was  necessary  to  enable  him  to 
prescribe  or  act  for  the  patient."  X 

The  privilege  conferred  by  these  statutes  is  pri- 

*  In  Arkansas  the  privilege  is  extended  by  statute  to  include  the 
"  trained  nurse."     Laws  of  1899,  Act  XXXI,  p.  .38. 

f  The  statutory  restriction  to  civil  cases  exists  in  California,  Idaho, 
Minnesota,  Montana,  Oregon,  Pennsylvania,  Utah,  and  Washington. 

X  Laws  of  Arizona,  1899,  p.  75. 


484:   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

marily  for  the  benefit  of  the  patient,  and  he,  therefore, 
either  by  his  acts  or  by  express  consent,  may  waive  the 
privilege  and  allow  the  physician  to  testify.  By  the 
statutes  of  several  States  '^  it  is  expressly  provided  that 
the  privilege  is  waived  whenever  the  patient  voluntarily 
testifies  regarding  the  subject  matter  of  the  same.  The 
question  of  what  acts  shall  in  the  absence  of  express 
statutory  provision  be  considered  a  waiver  of  the  privi- 
lege has  been  passed  upon  in  a  number  of  cases. 

Communications  with  Unlicensed  Physicians  not 
Protected. — The  statute  usually  provides  that  commu- 
nications shall  be  protected  when  made  to  persons 
"  duly  authorized  to  practise,"  or  to  "  licensed  physi- 
cians or  surgeons,"  or  to  "  qualified  physicians  and  sur- 
geons." These  statutes  will  therefore  not  protect  com- 
munications of  a  confidential  nature  made  to  one  not 
legally  qualified  to  practise  medicine,  but  who  is  exer- 
cising the  functions  of  a  physician ;  such  a  person,  upon 
being  called  as  a  witness,  may  be  required  to  disclose 
all  information  that  he  has  gained  from  a  patient,  and 
the  patient's  protest  will  avail  nothing,  f 

Relation  of  Physician  and  Patient  must  Exist  to 
Create  Privilege. — Having  learned  that  the  physician 
to  whom  the  confidential  communications  were  made 
was  duly  licensed  and  authorized  to  practise  medicine 

*  Kansas,  Nevada,  Ohio,  Oklahoma,  and  Wyoming, 
t  Wiel  vs.  Cowles,  45  Hun,  307. 


PEIVILEGED  COMMUNICATIONS.  485 

and  surgery,  it  next  becomes  pertinent  to  determine 
whether  or  not  the  relations  existing  between  the  pa- 
tient and  the  physician  to  whom  the  communications 
were  made  were  of  such  a  character  as  to  bring  such 
communications  within  the  protection  of  the  law. 

The  general  proposition  that  because  one  is  a 
licensed  physician  and  surgeon  he  is  incompetent  to  tes- 
tify regarding  the  condition  in  which  he  found  a  cer- 
tain person  without  that  person's  consent  is  too  absurd 
to  require  refutation ;  this  privilege  must  be  based  upon 
a  relation  of  confidence  similar  to  that  of  physician 
and  patient,  and  unless  such  relation,  in  fact,  exists  at 
the  time  the  information  is  obtained  there  is  no  privi- 
lege ;  *  nor  will  the  court  presume  the  existence  of  such 
confidential  relations.  The  party  invoking  the  aid  of 
the  law  must  show  that  the  relations  which  existed 
between  the  physician  and  himself  were  of  the  confiden- 
tial nature  contemplated  by  the  statute,  f 

In  order  to  constitute  the  confidential  relation  of 
physician  and  patient  it  is  not  essential  that  the  physi- 
cian should  have  been  called  or  employed  by  the  patient 
himself;  the  legal  effect  is  quite  the  same  whether  the 
physician  is  summoned  by  the  patient  himself,  by  the 


*  Jacobs  vs.  Cross,  19  Minn.,  623. 

•I-  People  w.  Schuyler,  106  N.  Y.,  298,  12  N.  E.  Rep.,  783 ;  Edington 
vs.  Insurance  Co.,  77  N.  Y.,  564 ;  Stowell  vs.  Am.,  etc.,  Assn.,  5  N.  Y., 
Supp.,  233. 


486    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

patient's  attending  physician,  by  friends  of  the  patient, 
or  even  by  strangers.*  It  therefore  logically  follows 
that  where  the  defendant  in  a  suit  for  personal  injuries 
sends  his  physician  to  the  plaintiff  to  make  an  exami- 
nation for  the  purpose  of  testifying  as  to  the  plaintiff's 
condition,  and  the  physician,  instead  of  simply  making 
the  examination  for  the  purpose  intended,  undertakes 
the  treatment  of  the  plaintiff,  the  relation  of  physi- 
cian and  patient  immediately  arises,  and  the  physi- 
cian becomes  incapable  of  disclosing  the  information 
obtained.!  In  the  case  of  Freel  vs.  Market  Street  Cable 
Eailway  Company,^  the  plaintiff  testified  that  defend- 
ant's physician  called  upon  her  several  times  and  pre- 
scribed for  her.  The  doctor,  when  questioned  upon  the 
subject,  failed  to  remember  whether  he  did  or  did  not 
prescribe  for  her.  Thereupon  the  plaintiff's  counsel 
asked  him  the  following  question :  "  It  was  during  this 
time  that  you  were  making  these  visits  and  prescribing 
for  her  that  you  obtained  any  loiowledge  that  you  have 
of  her  case  ?  "  to  which  the  physician  answered,  "  Yes, 

sir;  that  is  all,  except  conversations  with  Dr.  ." 

The  court  was  of  the  opinion  that  even  though  the 
physician  was  sent  for  the  sole  and  exclusive  purpose 
of  examining  the  plaintiff  to  enable  him  to  disclose  her 

*  Renihan  vs.  Dennin,  103  N.  Y.,  573. 

f  Weitz  vs.  Mound  City  Ry.  Co.,  53  Mo.  App.,  39. 

i:  Freel  vs.  Market  St.  Ry.  Co.,  97  Cal,  40. 


PRIVILEGED  COMMUNICATIONS.  487 

condition,  yet  by  "  visiting  and  prescribing  for  her " 
the  confidential  relation  of  physician  and  patient  was 
created,  which  would  preclude  the  disclosure  of  any  in- 
formation gained  while  making  such  visits.  And  so 
in  the  case  of  People  vs.  Murphy,*  where  the  public 
prosecutor  selected  a  physician  and  sent  him  to  exam- 
ine a  woman  upon  whom  an  abortion  had  been  per- 
formed, for  the  apparent  purpose  of  obtaining  evidence, 
and  the  physician  treated  the  patient  professionally, 
he  was  not  permitted  to  give  any  information  obtained 
while  so  treating  her. 

Where,  however,  a  physician  calls  upon  a  person 
and  examines  him  only  for  the  purpose  of  information, 
and  it  is  understood  that  the  purpose  of  the  call  and 
examination  is  not  for  professional  treatment,  no  ques- 
tion of  privilege  can  be  successfully  urged,  f  There- 
fore, where  a  physician,  at  the  request  of  the  prosecut- 
ing attorney,  entered  the  cell  of  a  prisoner  and  had  a 
talk  with  him  for  the  purpose  of  determining  his  men- 
tal condition,  but  rendered  to  him  no  medical  assistance 
or  advice,  the  physician's  observations  were  properly 
admitted  in  evidence. J  And  so,  when  a  physician,  at 
the  request  of  the  prosecuting  attorney,  examined  a  pris- 


*  People  vs.  Murphy,  101  N.  Y.,  126. 
+  Nesbit  vs.  People,  19  Colo.,  441,  36  Pac.  Rep.,  221. 
t  People  vn.  Kemmler,  119  N.  Y.,  580;  People  vs.  Sliney,  137  N.  Y., 
570,  50  S.  R.,  391. 


488   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

oner  while  in  jail  for  the  purpose  only  of  determining 
"whether  or  not  he  was  afflicted  with  a  venereal  disea&e, 
the  court  held  that  no  confidential  relation  existed,  and! 
that  the  information  gained  might  properly  be  dis- 
closed.* And  for  a  like  reason  it  is  held,  where  two 
physicians,  not  attending  upon  the  testatrix  profes- 
sionally, are  taken  to  her  bedside  for  the  purpose  of 
determining  her  mental  condition,  and  while  there  wit- 
ness the  execution  of  her  will,  that  no  professional  rela- 
tion is  thereby  created  between  the  testatrix  and  wit- 
nesses, and  that  they  are  competent  to  disclose  what  they 
learned  at  the  examination.  One  of  the  physicians,  in 
answer  to  questions  propounded  to  him  at  the  trial,  said 
that  he  was  not  testatrix's  physician  or  surgeon  at  the 
time,  and  didn't  prescribe  for  her;  was  not  called,  as 
he  understood  it,  to  prescribe  for  her;  that  he  was  not 
her  family  physician;  that  he  made  a  charge  for  making 
the  examination  upon  his  books  to  the  attorney  who 
prepared  the  will  and  was  present  at  the  examination ; 
that  he  made  the  examination  the  same  as  he  always 
did  when  called  upon  to  examine  a  person  with  regard 
to  sanity,  and  after  the  examination  the  will  was  at 
once  executed.  The  other  physician's  statement  of  the 
purpose  of  his  visit  was  in  legal  effect  much  the  same. 
In   considering  the   admissibility   of  the   evidence   of 

*  People  vs.  Glover,  11  Mich.,  303. 


PRIVILEGED  COMMUNICATIONS.  489 

these  physicians  the  court  said :  "In  the  present  case 
the  physicians  were  not  called  to  prescribe  for  the  de- 
ceased or  to  advise  as  to  professional  treatment;  nor 
did  they  so  prescribe  or  advise.  If  the  deceased  at  the 
time  of  their  visit  had  been  in  great  need  of  good  medi- 
cal advice,  and  they  had  given  no  advice,  they  would 
not  have  been  chargeable  with  malice  or  neglect  of 
duty;  because  they  were  not  under  any  obligation  to 
advise  or  to  prescribe.  Any  advice  or  prescription  would 
have  been  an  improper  act,  because  they  were  not  the 
attending  or  consulting  physicians,  and  they  were  under 
no  obligation  to  her.  If  they  had  conversed  with  her 
as  to  her  health,  then,  possibly,  she  might  have  conceived 
the  idea  that  they  were  consulting  physicians.  And  if, 
in  such  mistaken  belief,  she  had  stated  anything  as  to 
her  health,  very  possibly  that  might  have  come  within 
the  prohibition  of  this  section.  But  .  .  .  there  is  no 
reason  to  believe  that  she  thought  them  to  be  consulting 
physicians,  or  recognized  them  to  be  anything  more  than 
proper  witnesses  to  her  will."  * 

The  proper  test,  it  seems,  to  apply  in  determining 
the  competency  of  the  physician  to  testify,  is  whether 
he  met  the  party  professionally  or  non-professionally 
at  the  time  the  information  in  question  was  obtained. f 
Thus,  when  a  physician  offered  to  give  evidence  as  to 

*  Tn  re  Freeman,  46  Hun,  4.')8. 

f  Fisher  et  al.  vs.  Fisher  et  al.,  129  N.  Y.,  654. 


490    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

the  mental  capacity  of  the  deceased,  and  this  evidence 
was  objected  to  upon  the  ground  that  he  had  been  the 
attending  physician  of  the  deceased,  the  court,  upon 
being  shown  that  the  knowledge  regarding  which  the 
physician  proposed  to  testify  was  not  obtained  while 
acting  in  that  capacity,  properly  permitted  the  physi- 
cian to  testify.*  And  upon  the  same  principle  a  physi- 
cian who  had  attended  the  deceased  was  permitted  to 
state  what  he  had  observed  relative  to  deceased  when 
he  called  upon  him  for  the  purpose  of  collecting  some 
money  which  was  due  for  professional  services.  The 
physician  was  also  permitted  to  testify  that  he  met 
deceased  in  the  road  near  his  home,  and  that  the  old 
gentleman  did  not  know  him,  and  asked  who  he  was.f 
The  physician  must,  however,  be  able  to  separate  the 
knowledge  which  he  acquired  from  the  patient  while 
attending  him  in  a  professional  capacity  from  that 
which  he  obtained  upon  meeting  him  in  a  non-profes- 
pional  way,  otherwise  he  will  not  be  permitted  to  testify 
as  to  the  latter.;!: 

In  the  case  of  the  Colorado  Fuel  and  Iron  Company 
vs.  Cummings,*  the  defendant,  the  Colorado  Fuel  and 
Iron  Company,  together  with  a  certain  railroad  com- 

*  In  re  Will  of  Peck,  4?  N.  Y.  S.  R.,  898,  17  N.  Y.  Supp.,  248. 
4  Power  ?».•?.  Bower,  142  Ind  ,  194,  41  X.  E.  Rep.,  523. 

\  In  re  Darrnfrh,  52  Hur,  591. 

*  rolorado  Fuel  and  Iron  Co.  vs.  Cummings,  8  Colo.  App.,  541,  46 
Pac.  Rep ,  875. 


.PRIVILEGED  COMMUNICATIONS.  491 

pany,  had  established  a  hospital  for  the  use  of  the  two 
companies,  which  was  supported  by  contributions  from 
the  employees,  certain  amounts  being  deducted  from 
their  monthly  wages  for  that  purpose,  the  general 
contribution  being  termed  the  "  hospital  fund."  The 
plaintiff,  who  had  been  injured  while  in  the  course  of 
his  employment  with  the  defendant,  was  taken  to  this 
liospital  and  attended  by  a  physician  who  was  employed 
by  the  company  and  received  his  salary  from  it,  prob- 
ably from  the  "  hospital  fund."  This  physician  offered 
to  testify  regarding  the  plaintiff's  condition,  but  his 
evidence  was  refused.  The  court,  in  considering  the 
question  of  whether  or  not  the  relation  of  physician 
and  patient  existed  between  the  plaintiff  and  witness, 
said :  "  We  are,  however,  entirely  satisfied  that  the  cir- 
cumstances under  which  the  doctor  was  employed  and 
the  relation  existing  between  the  company  and  its  em- 
ployees and  the  doctor  were  such  as  to  put  the  physician 
and  the  plaintiff  directly  in  the  relation  of  doctor  and 
patient.  The  plaintiff's  contributions  may  have  been 
slight,  but  the  circumstances  of  the  situation  were  such 
as  to  lead  him  to  put  himself  implicitly  under  the  care 
of  the  surgeon  and  to  trust  himself  in  his  hands  for 
care  to  the  same  extent  and  under  the  same  circum- 
stances as  though  he  had  sent  out  for  another  physi- 
cian and  put  himself  directly  in  his  charge." 

From  this  case  an  inference  seems  deducible  that  the 
83 


492    THE  LAW  IN  ITS  EELATIONS  TO  PHYSICIANS. 

confidential  relation  of  physician  and  patient  can  not 
exist  when  the  physician  is  wholly  paid  by  a  third  party. 
However  justly  such  an  inference  may  be  drawn  from 
the  opinion  of  the  learned  court  in  this  case,  it  is  appre- 
hended, that  such  a  statement  would  not  be  correct  law. 
The  law  is  probably  better  illustrated  in  the  case  of 
Grossman  vs.  Supreme  Lodge  of  Knights  and  Ladies 
of  Honor,*  In  this  case  the  patient  was  at  a  hospital 
and  her  regular  attending  physician  was  a  Dr.  W.  A 
Dr.  N.  was  called  as  a  witness  to  testify  to  the  patient's 
condition,  but  his  evidence  was  objected  to  upon  the 
ground  that  the  knowledge  he  possessed  was  privileged. 
In  order  to  determine  the  relation  existing  between 
the  patient  and  Dr.  N.,  he  was  permitted  to  state  his 
connection  with  the  hospital  and  the  circumstances 
under  which  he  met  the  plaintiff.  He  stated  that  he 
and  Dr.  W.  had  charge  of  different  wards  in  the  hos- 
pital and  that  he  and  Dr.  W.  made  the  rounds  of  the 
hospital  together,  and  generally  examined  the  cases 
together;  that  he  was  not  the  physician  attending  the 
patient,  although  he  partly  attended  her.  Eeferring 
to  the  patient,  he  said :  "  I  went  with  Dr.  W.,  who  was 
the  attending  physician.  We  generally  tried  to  confirm 
diagnosis.  I  went  there  to  find  out  the  condition  of 
the  patient,  and  the  ailments."     And  again  he  said :  "  I 

*  Grossman  vs.  Supreme  Lodge  of  Knights  and  Ladies  of  Honor,  6 
N.  Y.  Supp.,  821. 


PRIVILEGED   COMMUNICATIONS.  493 

went  there  just  out  of  curiosity  to  acquire  information 
in  interesting  cases."  And  later  in  his  examination  he 
said  that  when  Dr.  W.  went  to  examine  the  patient 
he  went  with  him  "  and  assisted  him  in  making  the  ex- 
amination." Eegarding  the  admissibility  of  Dr.  N.'s 
evidence  of  the  condition  of  the  patient,  the  learned 
court  said :  "  We  think  the  court  properly  held  that  the 
witness  was  disqualified.  '  To  bring  the  case  within 
the  statute  it  is  sufficient  that  the  person  attended  as  a 
physician  upon  the  patient,  and  obtained  his  informa- 
tion in  that  capacity.'  *  Whether  the  witness  was 
actuated  by  curiosity  or  a  higher  motive  makes  no 
difference.  His  own  admission  that  he  attended  the 
patient,  although  he  qualifies  the  statement  by  the  use 
of  the  adverb  '  partly/  suffices  to  establish  the  exist- 
ence of  the  professional  relation  which  debars  him  from 
disclosing  what  he  learned  of  her  condition  under  the 
circumstances." 

A  jail  physician,  it  seems,  is  also  incompetent  to 
testify  as  to  the  condition  of  a  prisoner  whom  he  has 
attended  in  a  professional  capacity ;  but  unless  it  can  be 
shown  that  the  information  he  offers  to  disclose  was 
obtained  while  attending  such  prisoner  professionally 
he  will  not  be  prevented  from  testifying,  f 

Whether  or  not  the  professional  relation  of  physi- 

*  From  Eenihan  vs.  Dennin,  103  N.  Y.,  STS. 

f  People  vs.  Schuyler,  106  N.  Y,,  298,  12  N.  E.  Rep.,  TSS. 


494    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

cian  and  patient  exists  to  such  a  degree  as  to  protect 
the  communications  made  to  the  physician  where  a 
third  party  comes  to  him  and  makes  disclosures  for  the 
purpose  of  getting  medicine  or  a  prescription  for  the 
patient  is  a  question  that  is  largely  dependent  upon  the 
circumstances  of  the  particular  case.  In  an  early  New 
York  ease  *  the  defendant  repeatedly  applied  to  a 
physician  for  drugs  to  produce  an  abortion,  and  upon 
one  occasion  told  him  the  name  of  the  female  for  whose 
use  the  drugs  were  desired.  The  physician  was  permitted 
to  disclose  the  subject  of  these  interviews,  the  court 
expressing  its  opinion  as  follows :  "  The  witness  (the 
physician)  I  think  was  not  privileged.  It  is  very  doubt- 
ful whether  the  communications  made  to  him  by  the 
defendant  can  be  considered  as  consulting  him  profes- 
sionally within  the  meaning  of  the  statute."  And  so, 
in  the  case  of  Babcoek  vs.  People, f  a  physician  was  per- 
mitted to  testify  that  defendant  came  to  him  and  told 
him  that  he  wanted  some  medicine  for  a  certain  young 
lady  who  had  taken  a  cold  and  was  suffering  from  sup- 
pressed menses,  and  that  subsequently,  in  about  a 
month,  the  defendant  returned  the  medicine  and  said 
it  was  for  his  wife  and  was  not  given  because  she  was 
pregnant.  The  court  said :  "  The  defendant  was  not 
consulting  him  (the  physician)  for  himself,  nor  does  it 

*  Hewitt  vs.  Prime,  21  Wend.,  79. 
f  Babcocli  vs.  People,  15  Hun,  347. 


PRIVILEGED  COMMUNICATIONS.  495 

appear  that  he  was  representing  any  one  else  who 
needed  or  desired  medical  assistance."  If,  however,  a 
third  party  appears  before  a  physician  and  confidentially 
discloses  to  him  the  condition  of  a  patient  and  procures 
the  physician  to  undertake  the  treatment  of  such  pa- 
tient, the  relation  of  physician  and  patient  exists  in 
its  full  sense,  and  the  information  conveyed  through  the 
third  party  is  as  adequately  protected  as  though  com- 
municated by  the  patient  direct.* 

It  has  been  observed  that  the  confidential  relation 
of  physician  and  patient  is  not  dependent  upon  the  em- 
ployment by  the  patient,  but  that  such  a  physician  may 
be  called  by  another.  Similar  to  this  is  the  rule  that 
a  physician  who  is  called  by  the  attending  physician  as 
consultant  is  within  the  law  and  not  permitted  to  dis- 
close knowledge  gained  in  the  course  of  such  consulta- 
tion.! The  partner  of  the  attending  physician  also 
comes  within  the  rule  and  is  not  permitted  to  disclose 
knowledge  imparted  to  him  by  the  attending  physi- 
cian. 

Justice  Berkshire,  in  considering  a  question  of  the 
sort,  said :  "  Dr.  L.  (the  partner)  comes  clearly  within 
the  spirit,  if  not  the  letter,  of  the  statute.  He  was 
the  partner  of  Dr.  W.  (the  attending  physician).  They 
were  in  active  practice,  occupying  the  same  office.    The 

*  People  vs.  Brower,  53  Hun,  217. 
f  Renihan  vs.  Dennin,  103  N.  Y.,  513. 


496    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

business  of  the  one  was  the  business  of  the  other;  when 
necessary,  it  was  the  duty  of  one  to  consult  with  the 
other,  and  in  the  absence  of  the  one  who  was  giving 
special  attention  to  a  patient,  it  was  proper  for  the 
other,  if  not  obligatory  on  him,  to  take  his  place."  In 
this  ease  the  court,  after  stating  that  the  information 
possessed  by  Dr.  L.  was  obtained  while  the  patient  was 
at  the  firm's  office  to  consult  Dr.  W.,  expressed  itself 
positively  that  to  have  permitted  Dr.  L.  to  disclose  this 
information  "  would  have  been  a  perversion "  of  the 
statute.*  It  seems,  however,  that  a  physician  merely 
having  office  privileges  with  the  attending  physician, 
but  not  interested  in  his  business,  does  not  come  within 
the  law  and  will  be  permitted  to  disclose  information 
imparted  to  him  by  the  other's  patients,  f 

'Hot  does  the  relation  of  physician  and  patient  exist 
as  contemplated  by  the  law  when  the  physician  per- 
forms an  autopsy,  as  a  dead  man  can  not  be  considered 
a  "  patient,"  "  but  is  a  mere  piece  of  senseless  clay  which 
has  passed  beyond  the  reach  of  human  prescription, 
medical  or  otherwise."  Therefore  information  disclosed 
at  such  autopsy  is  not  privileged.  J 


*  The  ^tna  Life  iDsurance  Co.  vs.  Deming,  123  Ind.,  384,  24  N.  E. 
Eep.,  86. 

\  Kendall  vs.  Grey,  2  Hilt.,  300. 

X  Harrison  vs.  Suiter  Street  Ry.  Co.,  116  Cal.,  156,  47  Pac.  Rep., 
1019. 


PRIVILEGED  COMMUNICATIONS.  497 

The  statutes,  in  designating  to  what  relations  the 
privilege  shall  extend,  more  frequently  use  the  expres- 
sion that  no  person  authorized  to  practise  "physic  or 
surgery ''  shall  be  permitted  to  testify,  etc.  Such  a  des- 
ignation as  this  is  restricted  to  a  physician  or  surgeon 
and  is  not  construed  to  include  a  dentist ;  for  while  the 
duties  of  a  dentist  include  to  a  very  limited  extent  those 
of  a  surgeon,  yet  it  has  been  held  that  a  dentist  is  not,  in 
law,  to  be  considered  a  surgeon;  *  therefore  communica- 
tions made  to  him  will  not  be  privileged,  f 

Knowledge  Coining  within  the  Law. — The  question 
of  what  knowledge  is  within  the  meaning  of  these 
statutes  is  often  a  very  nice  one,  and  it  is  a  question 
upon  which  the  courts  have  many  times  been  unable 
to  agree. 

There  is  no  doubt,  however,  that  the  statute  does 
not  preclude  one  from  stating  that  he  is  the  family 
physician  of  another,  nor  from  giving  the  number  and 
dates  of  his  professional  visits,^  and  the  date  upon  which 
he  discharged  the  patient.*  The  disclosures  which  the 
law  aims  to  preclude  the  physician  from  making  are 
those  facts  which  he  learns  in  the  course  of  his  pro- 

*  State  vs.  Fisher,  24  S.  W.  Rep.,  167,  22  L   R.  A.,  799. 

f  People  vs.  De  France,  104  Mich.,  563,  62  N.  W.  Rep.,  709. 
jj.  Briesenmeister  vs.  Kniphts  of  Pythias,  81  Mich.,  525 ;  Patten  vs. 
U.  L.  and  A.  Ins.  Assn.,  133  N.  Y.,  450,  31  N.  E.  Rep.,  342. 

*  Dittrich  vs.  City  of  Detroit,  98  Mich.,  2-45,  57  N.  W.  Rep., 
125. 


498    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

fessional  employment,*  and  to  construe  tlie  statutes  so 
as  to  give  them  this  effect  is  the  apparent  design  of 
the  courts. 

The  statute  of  New  York  provides  that  one  prac- 
tising medicine  and  surgery  shall  not  be  permitted  to 
disclose  "  any  information  which  he  acquired  in  attend- 
ing a  patient  in  a  professional  capacity,"  With  the  ex- 
ception of  five  States  f  to  be  hereafter  referred  to,  each 
of  the  States  having  statutes  upon  this  subject  has 
almost  literally  reenacted  that  part  of  the  N"ew  York 
statute  included  within  the  quotation,  which  describes 
the  knowledge  that  is  protected. 

It  seems  well  settled  that  this  clause  in  the  statutes 
includes  all  knowledge  gained  in  the  professional  inter- 
course of  a  physician  with  his  patient,  whether  obtained 
from  statements  made  to  him  by  the  patient  or  gained 
from  observing  and  examining  the  patient.  A  lead- 
ing case  upon  this  subject  is  that  of  Edington  vs. 
Mutual  Life  Insurance  Company. J  In  this  case  Jus- 
tice Miller  says :  "  When  it  (the  statute)  speaks  of  in- 
formation, it  means  not  only  communications  received 
from  the  lips  of  the  patient,  but  such  knowledge  as  may 
be  acquired  from  the  patient  himself,  from  the  state- 
ment of  others  who  may  surround  him  at  the  time,  or 

*  Kelley  vs.  Highfield,  15  Or.,  277. 

■f  The  five  States  not  following  the  wording  of  the  New  York  statute 
in  the  above  particular  are  Indiana,  Iowa,  Nebraska,  Ohio,  and  Wyoming. 
i  Edington  vs.  Mutual  Life  Insurance  Co.,  67  N.  Y.,  185. 


PRIVILEGED  COMMUNICATIONS.  499 

from  observation  of  his  appearance  and  symptoms. 
Even  if  the  patient  could  not  speak,  or  his  mental 
powers  were  so  affected  that  he  could  not  accurately 
state  the  nature  of  his  disease,  the  astute  medical  ob- 
server would  readily  comprehend  his  condition.  In- 
formation thus  acquired  is  clearly  within  the  scope  and 
meaning  of  the  statute."  The  law,  as  stated  by  the 
learned  judge  in  this  case,  has  been  cited  with  approval 
and  followed  in  a  number  of  succeeding  cases  in  New 
York  and  elsewhere.*  The  examination  of  the  patient 
referred  to  in  these  cases  covers  not  only  the  thorough 
and  careful  examination  made  for  the  purpose  of  pre- 
scribing, but  includes  as  well  impressions  or  opinions 
regarding  the  patient's  condition  formed  from  his  gen- 
eral appearance  as  disclosed  at  first  sight,  before  the 
physician  has  had  an  opportunity  to  examine  or  con- 
verse with  him.f  Nor  will  the  seal  of  silence  be 
removed  from  the  doctor's  lips  because  the  exami- 
nation may  have  been  conducted  in  the  presence  of 
others.;!; 

In  the  States  of  Indiana,  Iowa,  Nebraska,  Ohio,  and 
Wyoming  the   statute   provides   that   physicians   shall 

*  Grattan  vs.  National  Life  Insurance  Co.,  15  Hun,  74;  Briggs  vs. 
Briggs,  20  Mich.,  34 ;  Gartside  vs.  Conn.  Mutual  Life  Insurance  Co.,  76 
Mo.,  446;  Corbett  vs.  St.  L.  I.  M.  and  S.  Ry.  Co.,  2fi  Mo.  App.,  621. 

f  Grattan  vs.  Metropolitan  Life  Insurance  Co.,  28  Hun,  4B0,  92 
N.  Y.,  274. 

I  Grattan  vs.  Metropolitan  Life  Insurance  Co.,  80  N.  Y.,  281. 


500    THE  LAW  IN  ITS  EELATIONS  TO  PHYSICIANS. 

not  be  allowed  to  disclose  matter  "  comnmnicated  "  to 
them  by  tlieir  patients,  or  to  disclose  any  "  communi- 
cation/' etc.  The  wording  of  these  statutes  would  seem 
at  first  sight  to  restrict  the  protection  of  privilege  to 
such  information  as  the  physician  received  by  communi- 
cations from  the  lips  of  his  patients;  such,  however, 
does  not  seem  to  be  the  understanding  of  the  courts 
which  have  passed  upon  the  question.  The  supreme 
court  of  Indiana,  after  quoting  the  statute  of  that 
State,  says :  "  It  sets  the  seal  of  secrecy  and  con- 
fidence upon  what  a  physician  observes  in  respect  to 
the  condition  of  his  patient's  person  in  the  course  of  his 
professional  examinations,  as  well  as  upon  communi- 
cations made  to  him  by  his  patient.  Accident  or  dis- 
ease may  compel  the  submission  of  one's  person  to 
examination  by  a  physician,  who  thus  acquires  informa- 
tion which  would  be  confided  to  no  one  else.  The  fear 
of  disclosure  often  induces  persons  to  suffer  from 
bodily  ailments  rather  than  submit  to  examination  by 
persons  of  skill.  The  policy  of  the  statute  is  to  protect 
and  render  inviolable  the  confidence  which  should  exist 
between  physician  and  patient.  A  physician  is  not  per- 
mitted to  disclose  the  result  of  observations  or  examina- 
tions made  by  him  upon  the  person  of  his  patient, 
unless  with  the  consent  of  the  latter,  or  unless  the 
patient  in  some  way  waives  his  privilege."  *     And  in 

*  Williams  vs.  Johnson,  112  Ind.,  273. 


PRIVILEGED  COMMUNICATIONS.  501 

a  late  case  *  the  supreme  court  of  Iowa  says :  "  Al- 
though the  statute  of  this  State  uses  the  word  '  com- 
munication '  it  means  much  the  same  as  the  word  '  in- 
formation '  in  the  statutes  of  other  States  to  which 
we  have  referred.  The  prohibition  of  our  statute  refers 
not  merely  to  verbal  communications^  but  to  those  of 
any  kind  by  which  information  of  the  character  of  that 
specified  in  the  statute  is  imparted."  The  courts  of 
last  resort  in  the  other  three  States  having  statutes 
similarly  worded  have  not  yet  passed  upon  this  par- 
ticular question.  It  is  hoped,  however,  that  when  a  case 
involving  this  point  shall  be  placed  before  them,  they 
will  be  able  to  reach  the  same  conclusion  as  that  arrived 
at  by  the  courts  of  the  two  sister  States,  for  such  a 
construction  of  the  statute  is  more  in  accord  with  the 
true  professional  spirit  of  reserve  regarding  matters 
necessarily  and  confidentially  disclosed  to  enable  the 
physician  to  properly  perform  the  functions  of  his  pro- 
fession. 

By  the  statute  of  nearly  every  State  the  protection 
of  the  law  is  restricted  to  the  knowledge  gained  by  the 
physician  which  was  "necessary  and  proper  to  enable 
him  to  discharge  the  functions  of  his  office."  The  word- 
ing of  the  statutes  of  several  of  the  States  is  different, 
yet  the  meaning  conveyed  is  quite  the  same.    In  constru- 

*  Prader  vs.  Accident  Association,  95  la.,  149. 


502    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ing  this  elauseof  the  statute  there  has  been  a  lack  of  har- 
mony, the  courts  at  one  time  having  shown  a  disposi- 
tion to  place  a  strict  construction  upon  the  statute 
and  exclude  all  matter  from  the  protection  of  the  privi- 
lege which  was  not  essential  or  necessary  for  diagnosti- 
cating or  prescribing  for  the  ailment ;  while  the  courts  at 
a  subsequent  and  previous  period  as  well  have  shown  a 
disposition  to  give  the  statute  a  more  liberal  construc- 
tion, and  include  within  its  protection  all  communica- 
tions which  might  reasonably  or  even  remotely  relate 
to  the  subject  of  the  professional  services. 

There  are  certain  communications  that  are  mani- 
festly outside  of  the  protection  of  the  law.  Thus,  where 
an  unmarried  woman  told  the  physician  who  attended 
her  at  her  confinement  that  the  father  of  her  child  had 
never  promised  to  marry  her,  the  communication  could 
not  be  withheld  as  privileged,  for  the  statement  was  nei- 
ther designee!  nor  calculated  to  throw  any  light  upon  the 
patient's  condition  nor  aid  the  physician  in  the  remotest 
degree  in  his  professional  treatment  of  her.*  The  courts 
have,  however,  in  many  cases  shown  a  disposition  to  ad- 
mit every  doubt  in  behalf  of  a  liberal  construction  of  the 
statute.  Thus,  the  evidence  of  a  physician  that  he  had 
treated  a  certain  patient  for  venereal  disease  and  that 
the  patient  told  him  he  had  contracted  the   disease 

*  Collins  vs.  Mack,  31  Ark.,  684. 


PRIVILEGED   COMMUNICATIONS.  503 

from  the  cook  on  his  canal  boat,  was  excluded  as  com- 
ing within  the  statute.*  In  this  case  the  nature  of  the 
patient's  affliction  and  the  length  of  time  he  had  been 
suffering  from  it  are  clearly  within  the  protection  of 
the  statute,  but  there  is  room  for  doubt  that  the  state- 
ment by  the  patient  that  he  had  had  intercourse  with 
his  cook  could  have  been  intended  or  in  any  way  de- 
signed to  assist  the  doctor  in  the  professional  treatment 
of  the  case. 

Probably  the  case  most  cited  in  favor  of  a  strict  con- 
struction of  the  statute  is  that  of  Edington  vs.  Mtna. 
Life  Insurance  Company. f  Herein  Justice  Earl  says: 
"  It  will  not  do  to  extend  the  rule  of  exclusion  so  far  as 
to  embarrass  the  administration  of  justice.  It  is  not 
even  all  information  which  comes  within  the  letter  of 
the  statute  which  is  to  be  excluded.  .  ,  .  Suppose  a 
patient  has  a  fever  or  a  fractured  leg  or  skull,  or  is  a 
raving  maniac.  All  these  ailments  are  obvious  to  all 
about  him.  May  not  the  physician  who  is  called  to  at- 
tend him  testify  to  these  matters?  In  doing  so  there 
would  be  no  breach  of  confidence,  and  the  policy  of  the 
statute  would  not  be  invaded.  These  and  other  cases 
which  might  be  supposed,  while  perhaps  within  the 
letter  of  the  statute,  would  not  be  within  the  reason 
thereof."     Justice  Earl  gives  it  as  his  opinion  in  this 

*  Hunn  vs.  Hunn,  1  T.  and  C,  499. 

f  Edington  vs.  Jiltna  Life  Insurance  Co.,  11  N.  Y.,  564. 


504    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ease  that  the  party  attempting  to  avail  himself  of  the 
privilege  of  the  statute  must  show  that  the  information 
acquired  by  the  physician  was  such  as  was  necessary 
to  enable  him  to  prescribe  or  to  do  some  act  as  a  sur- 
geon. In  harmony  with  the  spirit  of  this  decision  is  the 
case  of  Campau  vs.  North,*  wherein  a  physician  was 
permitted  to  testify  to  the  date  upon  which  a  patient 
had  told  him  she  received  a  breach,  for  which  he  was 
treating  her  professionally.  The  court  thought  that  the 
time  the  patient  received  the  rupture,  or  rather  the 
existence  of  the  rupture,  prior  to  a  certain  date,  was 
not  information  "  necessary  to  enable  the  doctor  to 
prescribe  for  her  as  a  physician  or  to  do  any  act  for 
her  as  a  surgeon."  The  case  of  Linz  vs.  Massachusetts 
Mutual  Life  Insurance  Company  f  presents  the  views  of 
a  court  favoring  a  strict  construction  of  the  statute. 
Justice  Hayden,  in  this  case,  after  quoting  with  ap- 
proval from  the  opinion  of  Justice  Earl  in  the  Edington 
case,  says :  "  Objective  signs  that  are  obvious,  or  such 
an  observation  as  implies  no  disclosure — symptoms 
which  are  apparent  before  the  patient  submits  himself 
to  any  examination — the  statute  gives  no  authority  for 
excluding.  That  a  patient  had  an  inflamed  face,  a 
bloodshot  eye ;  that  fumes  of  alcohol  proceeded  from  his 
person;  that  he  talked  deliriously,  could  be  excluded 

*  Campau  vs.  North,  89  Mich.,  606. 

I  Linz  vs.  Mass.  Mut.  Life  Ins.  Co.,  8  Mo.  App.,  363. 


PRIVILEGED  COMMUNICATIONS.  505 

only  on  the  basis  that  the  statute  forbids  a  physician 
to  be  a  witness.  These  objective  signS;,  and  others  which 
imply  no  knowledge  obtained  as  the  result  of  submis- 
sion or  exposure  by  the  patient,  and  which  would  be 
apparent  before  the  initial  act  of  service  on  the  physi- 
cian's part,  the  latter  should  testify  to  under  our  stat- 
ute." 

These  three  cases  present  the  extreme  view  favoring 
a  strict  construction  of  the  statute.  This  view  has  not 
been  approved  or  followed  by  later  cases,  and  it  is  very 
much  doubted  whether  it  may  be  considered  the  law. 
The  case  of  Kling  vs.  The  City  of  Kansas  *  probably 
presents  the  true  doctrine.  In  this  case  the  question 
was  presented  to  the  court  whether  or  not  a  physician 
should  be  permitted  to  disclose  the  condition  of  a  pa- 
tient with  regard  to  sobriety  at  the  time  of  calling  upon 
him  to  render  professional  services.  The  court,  in  an 
elaborate  and  learned  opinion,  explains  clearly  and  sat- 
isfactorily the  meaning  of  the  statute  with  reference  to 
the  question  of  what  information  is  "necessary  infor- 
mation." The  court  is  of  the  opinion  that  all  informa- 
tion, although  unimportant  in  itself,  which  is  neces- 
sarily communicated  to  the  physician  in  order  to  give 
him  the  knowledge  needed  to  act  in  a  proper  profes- 
sional capacity  is  "  necessary  information."     It  is  evi- 

*  Kling  vs.  City  of  Kansas,  27  Mo.  App.,  231. 


506    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

dent  that  the  information  necessarily  imparted  to  a 
physician  to  give  him  a  clear  understanding  of  all  the 
conditions  and  circumstances  of  the  case  to  enable 
proper  professional  treatment  may,  and  oftentimes 
does,  include  much  irrelevant  matter,  and  matter  which 
has  no  relation  to  the  case  as  viewed  from  a  medical 
standpoint,  but  wliich  in  its  relation  to  matter  more 
intimately  related  to  the  main  question  was  necessarily 
communicated  to  give  a  correct  and  comprehensive  view 
of  the  whole  case.  To  illustrate,  the  court  says:  "If 
the  patient,  suffering  from  a  gunshot  wound,  neces- 
sarily communicates  the  information  to  the  physician 
that  the  wound  was  received  in  a  personal  encounter, 
in  order  to  explain  the  probable  course  of  the  ball,  in- 
formation of  which  latter  fact  is  needed  or  desired  by 
the  physician,  information  of  the  fact  that  the  patient 
was  wounded  in  a  personal  encounter,  although  that 
fact  is  unimportant,  would  be  privileged.  If  the  patient, 
suffering  from  a  broken  leg,  in  explaining  to  his  physi- 
cian the  manner  in  which  he  received  the  injury,  in 
order  to  give  needed  information  concerning  the  injury, 
communicate  to  the  physician  information  that  he  was 
under  the  influence  of  intoxicating  liquor  at  the  time 
of  the  accident,  such  information  would  be  excluded.'' 
It  will  be  remembered  that  the  protection  of  the  stat- 
ute applies  as  well  to  information  gained  by  seeing  and 
observing  the  patient  as  to  that  acquired  from  oral  com- 


PRIVILEGED  COMMUNICATIONS.  50Y 

munications  of  the  patient;  therefore,  if  a  patient,  to 
enable  a  physician  to  treat  an  injury,  necessarily  ex- 
poses his  person,  and  thereby  discloses  a  hidden  defect 
or  a  mark  indicating  the  presence  or  former  existence 
of  a  loathsome  disease,  such  an  exposure,  though  having 
no  relation  to  the  cause  of  the  present  professional 
services,  was  necessarily  made,  and  should  therefore  be 
considered  within  the  protection  of  the  law. 

The  court  then  refers  to  the  distinction  made  by  the 
strict  construction  case,  above  illustrated,  between  the 
obvious  signs  and  conditions,  such  as  the  "  bloodshot 
eye  "  and  "  fumes  of  alcohol,"  and  the  secret  and  hid- 
den signs  and  defects.  After  showing  that  the  Eding- 
ton  case  is  practically  overruled,  at  least  so  far  as  the 
subject  of  the  present  inquiry  is  concerned,  the  court 
asserted  that  such  a  distinction  had  no  support  either 
from  the  words  or  spirit  of  the  statute.  The  court  said : 
"  The  physician  called  upon  the  plaintiff  as  his  physi- 
cian; any  information  as  to  the  plaintiff's  condition  as 
to  sobriety,  acquired  by  the  physician  by  seeing  him, 
was  necessarily  acquired  in  order  to  treat  him,  and  is 
excluded  by  statute." 

It  logically  follows  that  a  physician  attending  a 
patient  that  has  been  injured  in  an  accident,  railroad 
or  otherwise,  will  not  be  permitted  to  disclose  state- 
ments made  to  him  by  the  patient  as  to  how  the  ac- 
cident occurred,  especially  if  the  communication  was 
33 


508    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

imparted  to  the  physician  for  the  purpose  of  aiding 
him  in  determining  the  character  or  extent  of  the 
injury.  The  decisions  upon  the  subject  are  nearly  all  in 
harmony  with  this  proposition.*  Thus,  in  the  ease  of 
Eaymond  vs.  The  Burlington,  Cedar  Eapids,  and 
Northern  Eailway  Company,!  where  the  physician  ques- 
tioned the  patient  regarding  the  accident  and  said  it 
was  absolutely  necessary  to  enable  him  to  obtain  a  diag- 
nosis, and  that  the  injury  would  be  more  severe  if  the 
cars  were  in  motion,  the  court  held  that  the  description 
of  the  accident  given  in  response  to  these  questions  was 
privileged.  In  the  case  of  The  Pennsylvania  Company 
vs.  Marion,!  the  court  very  justly  went  much  further. 
Here  the  questions  were  asked  by  the  physician,  as  con- 
tended by  the  defendant's  counsel,  for  the  purpose  of 
learning  whether  the  railroad  company  was  to  blame  for 
the  injury.  But  the  court  said :  "  The  physician  has 
no  business  to  interrogate  his  patient  for  any  purpose 
or  object  other  than  to  ascertain  the  nature  and  extent 
of  the  injury,  and  to  gain  such  other  information  as 
was  necessary  to  enable  him  to  properly  treat  the  injury 
and  accomplish  the  object  for  which  he  was  called  pro- 
fessionally; and  such  communications  are  privileged, 
and  he  can  not  disclose  them.    If  the  physician  took  ad- 

*  Heuston  vs.  Simpson,  115  Ind.,  62.  N.  Y.  C.  and  St.  L.  Ry.  Co.  vs. 
Mushruph,  11  Ind.  App.,  192. 

+  Raymond  vs.  B.  C.  R.  and  N.  Ry.  Co.,  65  la ,  152. 
X  The  Penn.  Co.  vs.  Marion,  123  Ind.,  415. 


PRIVILEaED  COMMUNICATIONS.  509 

vantage  of  the  fact  of  being  called  professionally,  and 
while  there  in  that  capacity  made  inquiries  of  the  in- 
jured party  concerning  matters  in  which  he  had  no 
interest  or  concern  professionally,  or  for  the  purpose 
of  qualifying  himself  as  a  witness,  he  can  not  be  per- 
mitted to  disclose  the  information  received.  The 
patient  puts  himself  in  the  hands  of  his  physician.  He 
is  not  supposed  to  know  what  questions  it  is  necessary 
to  answer  to  put  the  physician  in  possession  of  such 
information  as  will  enable  the  physician  to  properly 
treat  his  disease  or  injury,  and  it  will  be  conclusively 
presumed  that  the  physician  will  only  interrogate  his 
patient  on  such  occasions  as  to  such  matters  and  facts 
as  will  enable  him  to  properly  and  intelligently  dis- 
charge his  professional  duty,  and  the  patient  may 
answer  all  the  questions  propounded  which  in  any  way 
relate  to  the  subject  or  to  his  former  condition,  with 
the  assurance  that  such  answers  and  communications 
are  confidential,  and  can  not  be  disclosed  without  his 
consent."  'Not,  as  shown  in  an  earlier  part  of  this  chap- 
ter, will  it  make  any  difference  with  regard  to  the  seal 
of  secrecy  placed  upon  the  lips  of  the  physician  that 
he  was  employed  and  paid  by  the  railroad  company,  or 
party  accountable  for  the  accident,  provided  the  rela- 
tion of  physician  and  patient  actually  exists.* 

*  Louisville,  etc.,  R.   R.   Co.  vit.   Berry,  9  Ind.  App.,  63 ;  Citizens' 
Street  R.  R.  Co.  vs.  Stoddard,  10  Ind.  App.,  278. 


510    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

In  conflict  with  the  ahove  cases  is  that  of  Kansas 
City,  Fort  Scott,  and  Memphis  Eailroad  Company  vs. 
Murray,*  wherein  tlie  court  held  that  it  was  allowable 
for  a  physician  to  state  that  his  patient  told  him  he 
was  leaning  over  the  edge  of  a  car  and  negligently  fell 
off,  causing  the  injury.  The  court  based  tliis  decision 
squarely  upon  the  ground  that  the  statement  in  ques- 
tion did  not  relate  to  the  injury  or  ailment  for  which 
he  was  being  treated,  but  referred  to  circumstances 
preceding  the  injury.  This  case,  it  will  be  observed,  is 
in  direct  conflict  with  those  preceding,  which  are 
thought  to  present  the  better  view  of  the  law. 

In  harmony  with  those  decisions,  representing  a 
liberal  construction  of  the  statute,  a  physician  was 
precluded  in  ISTew  York  from  disclosing  statements 
made  to  him  by  his  patient  regarding  the  condition  of 
her  health  previous  to  the  time  she  came  under  his 
professional  care.f 

The  law,  in  order  to  adequately  protect  all  matter 
confided  to  the  physician,  not  only  seals  his  lips,  but 
guards  every  avenue  whereby  such  information  might 
be  improperly  disclosed.  Thus,  in  a  ISTew  York  case,  the 
court  refused  to  direct  that  a  physician's  original  books 
of  account,  which  contained  information  regarding  the 

*  K.  C,  Ft.  S.,  and  M.  Ry.  Co.  vs.  Murray,  55  Kan.,  336,  40  Pac. 
Eep.,  64  fi. 

\  Barker  vs.  Cunard  Steamship  Company,  91  Hun,  495. 


PRIVILEGED   COMMUNICATIONS.  511 

nature  of  the  maladies  of  his  patients,  be  turned  over 
to  a  receiver,  who  under  ordinary  circumstances  would 
have  been  entitled  to  their  possession.  The  court,  in 
assigning  the  reason  for  its  refusal  to  grant  the  order, 
said :  "  In  the  complicated  affairs  and  relations  of  life, 
the  counsel  and  assistance  of  clergymen,  physicians, 
surgeons,  and  those  learned  in  the  law  often  become  ne- 
cessary ;  and  to  obtain  it,  men  and  women  are  frequent- 
ly forced  to  make  disclosures  which  their  welfare,  and 
sometimes  their  lives,  make  it  necessary  to  keep  secret. 
Hence,  for  the  benefit  and  protection  of  the  confessor, 
patient,  or  client,  the  law  places  the  seal  of  secrecy  upon 
all  communications  made  by  those  holding  confidential 
relations,  and  the  courts  are  prohibited  from  compelling 
a  disclosure  of  such  secrets.  The  safety  of  society 
demands  the  enforcement  of  this  rule."  *  A  like  con- 
clusion would  undoubtedly  have  been  reached  by  the 
court  of  every  State  having  a  statute  protecting  this 
class  of  information. 

Rule  Applies  to  Knowledge  Regarding  Testamen- 
tary Capacity. — There  are  certain  classes  of  cases  to 
which  the  applicability  of  the  statutes  sealing  the  lips 
of  the  physician  regarding  information  gained  in  his 
professional  capacity  have  been  or  are  seriously  ques- 
tioned. 

*  Kelly  vs.  Levy,  8  N.  Y.  Supp.,  849. 


512    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

At  an  early  date  it  was  thought  that  the  statutes 
enjoining  secrecy  upon  physicians  could  not  have  been 
intended  to  apply  to  testamentary  cases.  Justice  Brad- 
ford, in  1850,  after  a  somewhat  extended  examination 
of  the  question,  expressed  it  as  his  opinion  that  he  did 
not  think  they  were  within  the  reason  or  the  intention 
of  the  statute.*  As  late  as  1883  this  opinion  was  cited 
with  approval  and  followed  in  the  surrogate  court, f  but 
in  1886  the  court  of  appeals  of  New  York  repudiated 
the  distinction  between  testamentary  cases  and  those 
of  the  ordinary  sort.  Justice  Earl,  in  delivering  the 
opinion  of  the  court,  logically  said :  "  But  it  is  claimed 
thai;  the  statute  should  be  held  not  to  apply  to  testa- 
mentary cases.  There  is  just  as  much  reason  for  apply- 
ing it  to  such  cases  as  to  any  other,  and  the  broad  and 
sweeping  language  of  the  two  sections  can  not  be  so 
limited  as  to  exclude  such  cases  from  their  operation. 
There  is  no  more  reason  for  allowing  the  secret  ailments 
of  a  patient  to  be  brought  to  light  in  a  contest  over  his 
will  than  tbere  is  for  exposing  them  in  any  other  case 
where  they  become  the  legitimate  subject  of  inquiry."  | 
This  decision  has  been  followed  by  an  almost  unbroken 
line  of  decisions  in  several  of  the  States  having  such 
statutes,  so  that  it  may  now  be  stated  with  reasonable 

*  Allen  vs.  Public  Administrator,  1  Bradf.,  221. 
f  Whelpley  vs.  Loder,  1  Demarest,  368. 
X  Renihan  vs.  Dennin,  103  N.  Y.,  51Z. 


PRIVILEGED   COMMUNICATIONS.  513 

certainty  that  the  knowledge  of  a  physician  gained 
from  a  professional  relation  with  his  patients  is  pro- 
tected as  fully  in  testamentary  cases  as  in  those  of  any 
other  sort.*  There  has,  however,  in  New  York  been  a 
disposition  shown  to  relax  from  the  liberal  and  broad 
interpretation  of  the  law  by  permitting  the  physician 
to  be  asked  whether  or  not  the  information  acquired  by 
him,  which  is  desired  to  be  shown  in  the  case,  was  neces- 
sary to  enable  him  to  act  in  his  professional  capacity, 
and,  upon  his  answering  this  question  in  the  negative, 
to  permit  him  to  disclose  such  information.! 

The  privilege  which  prevents  the  physician  from 
disclosing  all  information  gained  in  the  course  of  his 
professional  intercourse  is  one  which  may  be  waived 
by  the  patient,  and  it  has  been  very  ^properly  held  that, 
where  the  patient  requests  the  physician  to  place  his 
name  upon  the  patient's  will  as  subscribing  witness, 
he  thereby  waives  the  privilege  and  invites  a  full  and 
proper  examination  of  the  matters  and  facts  as  to  which 
the  physician's  lips  would  otherwise  have  been  sealed.  J 

*  In  re  Flint,  100  Cal,  391,  34  Pac.  Rep.,  863;  In  re  Redfield,  116 
Cal.,  637;  Heuston  vs.  Simpson,  115  Ind.,  62,  lY  N.  E.  Rep.,  261 :  Guv- 
ley  vs.  Park  (Ind.),  35  N.  E.  Rep.,  279;  Denning  vs.  Butcher,  91  la,  425, 
59  N.  W.  Rep.,  69 ;  Fraser  vs  Jennison,  42  Mich ,  206 ;  Thompson  vs. 
Ish,  99  Mo  ,  160. 

\  In  re  Halsey  Estate,  9  N.  Y.  Supp  ,  441 ;  Herrington  vs.  Winn,  14 
N.  Y.  Supp.,  612. 

X  In  re  Mullin's  Estate,  110  Cal.,  252,  42  Pac.  Rep.,  645;  McMaster 
vs.  Scriven,  85  Wis.,  162. 


5M   THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Regarding  Inquisition  of  Lunacy. — The  question 
whether  or  not  a  regular  attending  physician  is  com- 
petent in  an  inquisition  of  lunacy  to  testify  regarding 
his  patient's  condition  is  one  upon  which  there  does  not 
seem  to  be  a  decision  by  a  court  of  last  resort.  Justice 
Werner  was  of  the  opinion  that  the  statute  did  not 
disqualify  the  physician ;  he  said :  "  I  do  not  think  the 
section  applies  to  a  proceeding  of  this  character.  No 
physician  can  be  better  qualified  to  testify  to  the  sanity 
or  insanity  of  a  person  than  he  who  has  for  some  time 
attended  such  person  in  a  professional  capacity."  *  The 
latter  part  of  this  proposition  is  undoubtedly  correct, 
yet  the  same  statement  may  be  made  with  equal  force 
in  case  of  the  contest  of  a  will  upon  the  ground  of  a 
want  of  testamentary  capacity  on  the  part  of  the  testa- 
tor ;  and,  yet  we  have  just  seen  that  the  law  applies  in 
such  cases.  Until  this  question  is  settled  by  a  more 
authoritative  decision  it  may  well  be  considered  in 
doubt. 

Application  in  Criminal  Cases. — It  has  been  ob- 
served that  by  the  express  limitation  contained  in  the 
statutes  of  several  States  the  privilege  extended  to 
knowledge  professionally  obtained  by  the  physician 
applies  only  to  civil  cases.  This  limitation  precludes 
both  the  physician  and  patient  from  the  right  of  with- 

*  In  re  Benson  (Co.  Ct.),  16  N.  Y  Supp.,  111. 


PRIVILEGED  COMMUNICATIONS.  515 

holding;,  or  having  such  information  witlilield;,  where  it 
is  relevant  to  the  subject  of  inquiry  in  a  criminal  pro- 
ceeding.* In  those  States  where  the  privilege  is  not 
expressly  limited  by  statute  to  civil  proceedings  there 
is  some  difficulty  in  determining  with  certainty  the 
extent  to  which  the  courts  allow  the  privilege.  A  care- 
ful examination  of  the  cases  relative  to  the  subject  dis- 
closes precedents  extending  to  such  knowledge  the  pro- 
tection of  the  law  and  others  denying  it  such  protection. 
The  facts  and  circumstances  upon  which  these  con- 
flicting decisions  have  been  rendered  seem  to  suggest  a 
classification  of  the  precedents  under  three  heads,  by 
wliich  arrangement  the  apparent  conflict  of  authority 
is  overcome,  and,  it  seems,  a  uniform  rule  may  be  laid 
down,  as  foUoAvs : 

I.  Communications  had  for  the  purpose  of  doing  an 
unlav/ful  act  or  committing  a  crime  are  not  within 
the  meaning  of  the  law,  and  will  not  be  protected,  f 
Thus,  a  consultation  had  with  a  physician  relative  to 
the  unlawful  producing  of  an  abortion  is  not  within  the 
protection  of  the  law,  and  the  witness  may  be  com- 
pelled to  disclose  the  ssnoac.X  The  procuring  of  an 
abortion  is  not,  however,  necessarily  a  criminal  act; 

*  People  vs.  Lane,  101  Cal,  513,  36  Pac.  Rep.,  16;  People  vs.  West, 
106  Cal.,  89,  39  Pac.  Rep  ,  207. 

f  19  Am.  and  Eng.  Enc.  of  Law,  140;  State  vs.  Kidd,  89  la.,  51. 
I  State  vs.  Smith,  99  la.,  26,  68  N.  W.  Rep.,  428. 


516    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

therefore  in  some  jurisdictions  it  is  held  that  before  the 
protection  of  the  privilege  will  be  denied  it  must  be 
shown  that  the  mother's  life  or  health  did  not  neces- 
sitate the  operation.* 

II.  When  the  object  of  the  criminal  action  is  the 
prosecution  of  the  patient's  murderer,  then  the  privi- 
lege can  not  be  insisted  upon  by  the  accused  murderer 
so  as  to  preclude  the  deceased's  physician  from  disclos- 
ing the  condition  in  which  he  found  deceased.  Thus, 
where  a  physician  was  called  to  attend  a  patient  who 
had  been  feloniously  poisoned,  the  poisoner,  upon  trial, 
objected  to  a  disclosure  by  the  physician  of  the  condi- 
tion in  which  he  found  the  patient,  claiming  that  such 
information  was  privileged;  but  the  court  denied  that 
the  •  privilege  applied  in  such  a  case.f  The  reason  for 
denying  the  privilege  in  such  a  case  is  that  the  evident 
intention  of  the  legislature  in  passing  these  laws  was 
to  protect  the  patient  from  an  improper  disclosure  of 
his  infirmities,  whereas  the  application  of  the  rule  in 
such  a  case  would  act  as  a  shield  to  the  patient's  mur- 
derer, a  purpose  which  the  legislature  neither  contem- 
plated nor  designed  the  act  to  accomplish.  J 

III.  In    ordinary    criminal    actions    the    privilege 


*  Guptill  vs.  Verback,  58  la ,  98. 
t  People  vs.  Harris,  1 30  N.  Y.,  423. 
X  Piersou  vs.  People,  79  N.  Y.;  424, 


PRIVILEGED  COMMUNICATIONS.  517 

applies  equally  as  in  civil  matters.*  Thus,  where  an 
abortion  had  been  performed  and,  after  the  discovery 
of  the  commission  of  the  crime,  the  district  attorney 
sent  a  physician  to  attend  the  girl,  such  physician  was 
not  permitted  to  testify  regarding  knowledge  which 
he  gained  in  attending  her.  The  court,  in  discriminat- 
ing between  this  case  and  those  coming  under  the  sec- 
ond class,  said :  "  But  in  that  decision  (one  coming 
under  the  second  class)  the  statute  was  construed,  and 
we  held  it  did  not  cover  a  case  where  it  was  invoked 
solely  for  the  protection  of  the  criminal,  and  not  at  all 
for  the  benefit  of  the  patient,  and  where  the  latter  was 
dead,  so  that  an  express  waiver  of  the  privilege  had 
become  impossible.  The  j)resent  is  a  different  case."  f 
In  this  connection  it  might  be  pertinent  to  inquire 
whether  the  death  of  the  patient  after  the  witness 
assumed  professional  care  over  her  would  have  left  him 
free  to  disclose  those  facts  which  he  learned  in  his 
treatment  of  her,  or  whether  the  dishonorable  and  crimi- 
nal acts  causing  her  death  would,  if  disclosed,  cast  such 
a  cloud  of  dishonor  and  shame  upon  her  memory  as  to 
still  preserve  a  distinction  between  this  case  and  the 
one  referred  to  under  classification  II,  where  deceased 
came  to  his  death  by  poisoning.     There  seems  to  be  no 

*  Post  V.I.  State,   14  Ind.  App.,  452,  42  N.  E.  Rep.,  1120;  State  vs. 
Depoister,  21  Nev.,  107,  25  Pac.  Rep.,  1000. 
t  People  vs.  Murpby,  101  X.  Y.,  126. 


518    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

case  marking  the  exact  line  of  distinction.  It  is  be- 
lieved, however,  that  so  long  as  the  physician's  silence 
is  necessary  for  the  welfare  of  the  patient,  whether 
living  or  dead,  the  privilege  will  be  enforced.* 

To  whom  Privilege  Belongs. — The  privilege  of 
secrecy  insured  by  legislative  enactment  respecting  all 
professional  communications  is  a  right  extended  to  the 
patient  and  not  to  the  physician, f  and  it  is  a  right 
which  the  patient  may  assert  or  waive  as  he  chooses; 
and  in  the  event  of  the  patient's  waiver  the  physician 
may  be  compelled  to  testify.  Nor  does  the  right  cease 
with  the  death  of  the  patient,  as  the  physician  is  as 
strongly  bound  to  preserve  silence  after  that  event  as 
while  his  patient  was  in  life.  J  IsTor  does  it  seem  that 
the  rule  is  otherwise  regarding  the  extent  of  the  right 
vested  in  the  patient  in  those  States  in  which  the  stat- 
ute reads  that  the  physician  "  shall  not  be  compelled  to 
disclose,"  etc.  The  supreme  court  of  Wisconsin,  in  an 
opinion  both  cogent  and  logical,  shows  that  the  protec- 
tion of  the  patient,  who  alone  would  have  been  injured 


*  In  the  case  of  State  vs.  Harris,  supra,  a  disposition  was  shown  to 
sacrifice  the  honor  of  the  deceased  patient,  where  knowledge  profession- 
ally obtained  was  material  in  the  prosecution  of  deceased's  murderer, 
rather  than  impede  justice.  The  evidence  there  oifered  was  admissible 
upon  other  grounds,  however,  and  therefore  the  opinion  can  not  be  con- 
sidered authoritative  upon  this  particular  point. 

f  Johnson  vs.  Johnson,  14  Wend,  641. 

X  Grattan  vs.  Met.  Life  Ins.  Co.,  80  N.  Y.,  281. 


PRIVILEGED  COMMUNICATIONS.  519 

by  the  disclosure  of  his  infirmities,  was  the  object  and 
aim  of  the  legislature,  and  that  in  order  to  accomplish 
this  end  that  right  to  make  a  disclosure  can  not  be  left 
discretionary  with  the  physician,  but  that  "the  physi- 
cian can  neither  be  compelled  nor  allowed  to  disclose 
it,  as  a  witness,  against  the  will  or  without  the  consent 
of  the  patient."  * 

The  protection  which  the  statute  conveys  to  the 
patient  relates,  it  seems,  only  to  the  physician's  giving 
evidence  in  court  relative  to  information  professionally 
acquired,  but  does  not  prohibit  such  disclosures  in  his 
general  intercourse.!  The  legislature,  in  framing  this 
law,  evidently  assumed  that  in  all  eases  where  the  phy- 
sician is  not  subject  to  coercion,  as  is  an  ordinary  wit- 
ness upon  the  witness  stand,  the  patient's  secrets 
would  be  as  sacred  and  inviolable  in  the  breast  of  the 
physician,  unprotected  save  by  his  own  sense  of  profes- 
sional propriety,  as  though  secrecy  were  enjoined  by  the 
strictest  legislative  enactment.  In  this  connection  it 
may  be  proper  to  add  that  no  professional  man  having 
a  proper  regard  for  the  important  relation  which  he 
bears  to  society,  and  a  just  appreciation  of  the  absolute 
confidence  which  the  proper  performance  of  his  duties 
necessitates  being  reposed  in  him,  will  under  any  cir- 

*  Boyle  vs.  N.  W.  Mut.  Relief  Assn.,  95  Wis.,  312,  '70  N.  W.  Rep., 
351. 

f  See  dictum  in  Boyle  vs.  N.  W.  Mut.  Benefit  Assn.,  supra. 


520    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

CTimstances  be  betrayed  into  violating  such  confidence, 
or  outraging  the  honor  of  his  profession  by  improperly 
disclosing  facts  necessarily  learned  in  the  course  of  his 
professional  duties.  The  temptation  is  undoubtedly 
strong  at  times  to  publish  the  details  of  an  opera- 
tion or  treatment  which  reflects  favorably  upon  one's 
professional  skill,  yet  such  a  publication,  unauthorized 
by  the  patient,  can  not  be  regarded  otherwise  than  rep- 
rehensible in  the  extreme.  In  a  Michigan  case,  which 
arose  nearly  twenty  years  ago,  Justice  Campbell,  in 
delivering  the  opinion  of  the  court,  went  beyond  the 
question  at  issue  to  rebuke  one  of  the  parties,  a  physi- 
cian, who  had  published  the  details  of  an  operation 
recently  performed  by  him.  The  justice  said:  "We 
can  not  forbear,  in  the  interest  of  public  morality,  to 
call  attention  to  the  fact  that  the  plaintiff,  if  a  physi- 
cian, has  no  right  to  publish  matter  of  professional  con- 
fidence, and  that  the  article,  if  published  as  he  wrote  it, 
without  the  approbation  of  the  person  operated  on, 
would  have  been  a  very  plain  breach  of  professional 
duty.  Such  publications,  for  no  purpose  of  public  in- 
struction and  only  for  private  gratification  or  laudation, 
deserve  severe  censure."  * 

Waiver. — ^We  have  just  seen  that  the  privilege  is  a 
right  belonging  to  the  patient ;  therefore  the  patient  is 

*  SuUings  vs.  Shakespeare,  46  Mich.,  412. 


PRIVILEGED  COMMUNICATIONS.  521 

capable  of  waiving  this  privilege,  and  permitting  or,  if 
necessary,  compelling  his  physician  to  testify  regarding 
matters  of  professional  confidence  between  them;  and 
this  is  the  law  even  in  States  where,  by  the  wording  of 
the  statute,  the  physician  is  incompetent  to  disclose 
information  obtained  in  the  course  of  his  professional 
employment.* 

The  waiver  need  not  always  be  express,  but  may 
be  implied  from  the  acts  or,  under  some  circumstances, 
from  the  silence  of  the  patient;  but  to  determine  whether 
or  not  the  conduct  of  the  patient  in  a  particular  case 
amounts  to  a  waiver  is  often  a  very  difficult  matter. 
The  patient,  by  calling  his  physician  to  testify,  waives 
the  privilege.]'  Also,  the  patient's  attorney  waives  for 
him  when  he  calls  the  physician  as  a  witness  and  states 
that  as  the  patient's  attorney  he  waives  the  privilege 
of  the  statute.;]:  It  is  also  held  that  a  patient,  by  per- 
mitting a  physician  to  testify  regarding  privileged  mat- 
ters, either  as  his  own  or  his  opponent's  witness,  waives 
the  privilege.*  It  is  advisable  to  state,  however,  in  this 
regard  that  a  physician,  whenever  placed  upon  the  wit- 


*  Davenport  vs.  Hannibal,  108  Mo.,  471,  18  S.  W.  Rep.,  1122. 

•f  Carrington  vs.  St.  Louis,  89  Mo.,  208 ;  Squires  vs.  City  of  Chilli- 
cothe,  89  Mo.,  226. 

X  Alberti  vs.  N.  Y.,  L.  E.,  and  W.  R.  Co.,  118  N.  Y.,  11,  23  N.  E. 
Rep.,  35. 

*  Hoyt  vs.  Hoyt,  112  N.  Y.,  403;  Lincoln  vs.  City  of  Detroit,  101 
Mich.,  245,  59  N.  W.  Rep.,  GlT;  Wheelock  vs.  Godfrey,  100  Cal.,  51S. 


522    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

ness  stand  by  another  than  his  patient,  for  the  purpose 
of  disclosing  privileged  matter  between  himself  and 
that  patient,  should,  in  justice  to  that  patient,  inform 
the  court  that  the  matter  he  is  asked  to  divulge  was 
learned  by  him  in  the  course  of  his  professional  attend- 
ance, and  that  he  desires  to  submit  the  question  to  the 
court  whether  he  may,  consistently  with  the  confidence 
reposed  in  him  by  the  patient  and  with  his  own  pro- 
fessional integrity,  disclose  such  confidential  matter.  A 
case  similar  to  the  one  supposed,  in  wliich  the  physi- 
cian disclosed  matter  that  should  have  been  carefully 
guarded,  went  to  the  supreme  court  of  Michigan  sev- 
eral years  ago,  and  Justice  Conley,  in  delivering  the 
opinion  of  the  court,  took  the  opportunity  to  censure 
both  the  physician  and  the  commissioner  who  permitted 
the  evidence  to  be  received,  in  the  following  words: 
"  Every  reputable  physician  must  know  of  the  existence 
of  this  statute  (protecting  confidential  communica- 
tions) ;  and  he  must  know  from  its  very  terms,  as  well 
as  from  the  obvious  reasons  underlying  it,  that  it  is 
not  at  his  option  to  disclose  professional  secrets.  A 
rule  is  prescribed  which  he  is  not  to  be  '  allowed '  to 
violate ;  a  privilege  is  guarded  which  does  not  belong  to 
him,  but  to  his  patient,  and  which  continues  indefinite- 
ly, and  can  be  waived  by  no  one  but  the  patient  liim- 
self.  What  was  done  in  this  case  may  have  been 
thoughtlessly  done ;  but  if  a  physician  is  found  disposed 


PRI^TELEGBD  COMMUNICATIONS.  523 

to  violate  both  the  law  of  the  land  and  the  precepts 
of  professional  ethics  by  making  such  a  disclosure,  and 
if  counsel  invite  him  to  do  so  by  their  questions,  the 
commissioner,  in  the  case  of  so  plain  a  disregard  of  the 
law  to  the  prejudice  of  a  third  party,  may  well  decline 
to  be  an  instrument  of  the  wrong."  * 

In  case  of  a  criminal  prosecution  instituted  by  the 
patient,  who  is  prosecuting  witness,  he  will  be  deemed 
to  have  waived  his  privilege,  and  the  physician  who 
attended  the  patient  for  the  injuries  inflicted  by  the 
accused  will  be  properly  permitted  to  testify.  Thus, 
in  a  rape  case  where  the  criminal  act  was  committed 
upon  a  child,  and  the  prosecution  was  inaugurated  by 
the  child's  parents,  and  the  child  and  her  mother  testi- 
fied at  the  trial  regarding  the  criminal  act  and  the 
injuries  thereby  inflicted,  the  supreme  court  of  Nevada 
was  of  the  opinion  that  the  parents  by  their  conduct 
showed  a  desire  to  waive  the  protection  of  the  statute, 
and  that  the  physician's  evidence  was  therefore  prop- 
erly admitted,  f 

But  whether  or  not  the  patient,  by  taking  the  wit- 
ness stand  in  a  civil  suit  and  testifying  regarding  his 
health,  waives  his  privilege  of  objecting  to  the  evidence 
of  his  physician  as  to  the  condition  of  his  health  at  the 
time  referred  to  in  his  testimony  is  a  question  upon 

*  Storra  vs.  Scougale,  48  Mich.,  388. 
f  State  vs.  Depoister,  21  Nev.,  107,  25  Pac.  Kep.,  1000. 
34 


524    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

which  the  decisions  are  not  in  harmony.  It  has  been 
observed  that  in  several  States  the  statute  extending  the 
privilege  to  the  patient  expressly  provides  that  when 
the  patient  voluntarily  testifies  he  will  be  deemed 
to  consent  to  the  examination  of  his  physician.*  In 
States  having  such  a  statute  there  can  be  no  doubt 
that  the  patient,  by  testifying  concerning  matter  within 
the  knowledge  of  his  physicians,  in  law  authorizes  them 
to  make  a  full  disclosure  relative  thereto,  but  whether 
his  testifying  will  have  such  effect  in  other  States  is 
seriously  doubted.  In  the  court  of  common  pleas  of 
New  York,  however.  Justice  Pryor  held  that  the  plain- 
tift',  who  testified  minutely  and  circumstantially  to  the 
effect  of  a  blow  upon  her  physical  condition,  and  dis- 
closed to  the  jury  without  reservation  all  the  ill  conse- 
quences of  the  injury  to  her  health  and  comfort,  there- 
by waived  the  privilege  of  objecting  to  the  evidence  of 
the  physician  who  had  attended  her  for  the  particular 
injuries,  f  Almost  contemporaneous  with  this  case  is 
one  from  the  supreme  court  of  Iowa,  in  which  the  plain- 
tiff testified  minutely  regarding  the  health  she  enjoyed 
previous  to  the  accident  upon  which  the  suit  was  based, 
in  such  a  way  as  to  justify  the  belief  that  she  was  an 
unusually  vigorous  and  healthy  woman.    The  defendant 

*  The  statutes  contain  such  a  clause  in  Kansas,  Ohio,  Oklahoma,  and 
Wyoming. 

f  Treanor  vs.  Manhattan  Ry.  Co.,  28  Abb.  N.  C,  4T. 


PRIVILEGED   COMMUNICATIONS.  525 

then  offered  the  evidence  of  the  physician  who  had  at- 
tended the  patient  occasionally  during  the  time  referred 
to  in  her  testimony,  but  the  court  denied  that  the  plain- 
tiff by  her  evidence  hud  waived  her  privilege  of  object- 
ing to  the  disclosure  proposed,*  and  therefore  refused 
to  permit  the  physician  to  testify.  The  authorities 
seem  to  be  uniform  upon  the  proposition  that  where  a 
patient  at  the  trial  testifies  regarding  his  condition  at 
a  certain  time  physicians  who  attended  him  at  an- 
other time  than  that  covered  in  his  testimony  can  not 
be  permitted  to  testify  regarding  the  patient's  condi- 
tion at  such  other  time  contrary  to  liis  objection.  In 
the  case  of  Butler  vs.  Manhattan  Eailway  Company, 
the  plaintiff,  who  was  pregnant,  upon  attempting  to 
board  a  car  upon  the  elevated  railroad,  was  struck  a 
severe  blow  in  the  side  by  the  iron  gate  as  it  was  forcibly 
closed  by  the  brakeman,  producing  a  miscarriage.  At 
the  trial  the  plaintiff  testified  regarding  her  physical 
condition  subsequent  to  the  accident,  whereupon  the 
defendant  attempted  to  prove  by  the  physicians  who  had 
attended  the  patient  previous  to  the  accident  what  her 
condition  was  during  that  period,  but  the  court  refused 
to  permit  the  disclosure  offered. f 

It  also  seems  well  settled  that  when  a  patient  is 
attended  by  several  different  physicians   at   different 

*  McConnell  vs.  City  of  Osage,  80  la.,  293,  45  N.  W.  Rep.,  550. 
f  Butler  vs.  Manhattan  Ry.  Co.,  23  N.  Y.  Supp.,  1C3. 


526    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

periods,  and  he  calls  one  physician  to  testify  to  his  con- 
dition during  the  period  in  which  that  physician  treated 
him,  he  does  not  thereby  waive  his  privilege  as  to 
the  other  physicians.*  Thus,  where  the  patient,  who 
had  been  injured  in  a  railway  accident,  first  employed 
Dr.  A.,  but  before  recovering  discharged  him  and  em- 
ployed Dr.  B.,  it  was  held  that  by  calling  Dr.  B.  to  tes- 
tify regarding  his  condition  he  did  not  waive  his  privi- 
lege as  to  Dr.  A.,  and  that  Dr.  A.  could  not  be  placed 
upon  the  witness  stand  by  the  defendant  to  testify,  con- 
trary to  the  patient's  objection,  to  facts  learned  while 
attending  him  professionally,  f  And  so,  when  a  patient 
called  physicians  to  testify  to  his  condition  previous  and 
subsequent  to  a  certain  period,  he  did  not  thereby  waive 
his  privilege  to  object  to  the  evidence  of  another  physi- 
cian, who  had  attended  him  during  the  intervening 
period,  regarding  his  physical  condition  during  such 
intervening  period.  J  But  when  two  or  more  physicians 
attend  a  patient  at  the  same  time  the  question  of 
whether,  by  calling  one  of  them  to  disclose  his  condition, 
he  waives  his  privilege  as  to  the  others  is  one  upon 
which  the  decisions  are  conflicting.  The  court  of  ap- 
peals of  New  York  holds  that  by  such  an  act  he  does 


*  Hope  vs.  Troy  and  Lansingburg  Ry.  Co.,  40  Hun,  438. 
f  Mellor  vs.  The  Mo.  Pac.  Ry.  Co.,  105  Mo.,  455. 
X  Barker  vs.  Cunard  Steamship  Co.,  91  Hun,  495,  86  N.  Y.  Supp., 
256. 


PRIVILEGED  COMMUNICATIONS.  527 

waive  his  privilege  of  objecting  to  the  evidence  of  the 
others.  The  court  says :  "  We  think  that  a  construction 
of  the  statute  which  permits  a  patient  who  has  been 
attended  by  two  physicians  at  the  same  examination  or 
consultation  to  call  one  of  them  as  a  witness  to  prove 
what  took  place  or  what  he  learned,  thus  making  public 
the  whole  interview,  and  still  retain  the  right  to  object 
to  the  other,  is  unreasonable  and  unjust,  and  should  not 
be  followed.  The  waiver  is  complete  as  to  that  consulta- 
tion when  one  of  them  is  used  as  a  witness."  *  Upon 
the  other  hand,  the  supreme  court  of  Iowa  in  a  recent 
case  held  that  a  patient,  by  placing  on  the  stand  one  of 
several  physicians  who  had  attended  her,  presumably  at 
the  same  time,  did  not  waive  her  right  of  objecting  to 
the  evidence  of  the  others  as  privileged,  f 

The  question  of  whether  the  privilege,  having  once 
been  waived  in  a  given  case,  may  ever  again  be  asserted, 
is  also  one  in  which  there  is  conflict  of  authority.  In 
the  case  of  Grattan  vs.  Insurance  Company,;];  the  ISTew 
York  court  of  appeals  held  that  a  party  having  waived 
the  privilege  at  one  trial  could  claim  it  upon  a  new 
trial  of  the  same  case ;  but  the  same  court,  in  the  case  of 


*  Morris  vs.  N.  Y.,  0.,  and  W.  Ry.  Co.,  148  N.  Y.,  88,  42  N.  E. 
Rep.,  410. 

t  Baxter  vs.  City  of  Cedar  Rapids,  103  la.,  599,  72  N.  W.  Rep., 
790. 

X  Grattan  vs.  Insurance  Co.,  92  N.  Y.,  274. 


528    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

McKinney  vs.  Grand  Street,  etc.,  Eailroad  Company,* 
decided  four  jeaTS  later  that  the  patient  having  once 
consented  to  the  disclosure  of  privileged  information 
could  never  again  assert  his  privilege  regarding  the  sub- 
ject of  his  former  waiver.  The  supreme  court  of  Michi- 
gan, in  a  late  case,f  in  passing  upon  practically  the 
same  case,  reviewed  the  decisions  of  the  New  York 
court  and,  after  expressing  its  preference  of  the  rule 
laid  down  in  the  Grattan  case,  held  that  a  privilege  hav- 
ing been  waived  at  one  trial  might  be  asserted  at  a  new 
trial  of  the  same  case. 

That  a  patient  fully  and  completely  waives,  all  privi- 
lege as  to  matters  connected  with  the  physician's  treat- 
ment of  him  when  he  sues  the  physician  for  alleged 
malpractice  in  such  treatment  can  not  be  justly  doubted. 
"  To  establish  a  contrary  rule,"  said  Justice  Gavin, 
'•'  would  be  most  manifestly  unfair."  J  But  a  rule  of 
similar  justice  does  not  prevail  where  a  physician  sues  a 
patient  to  recover  for  the  value  of  his  professional  serv- 
ices, and  the  patient  interposes  an  answer  containing  a 
general  denial.  In  such  a  case  the  patient  does  not  waive 
his  privilege,  and  the  physician  may  not  testify  as  to  any 
information  protected  by  the  statute.*    He  may,  how- 

*  MfKinney  vs.  Grand  St.,  etc.,  R.  R.  Co.,  104  N.  Y.,  362,  10  N.  E. 
Rep.,  544. 

f  Briesenmeister  vs.  K.  of  P.,  81  Mich.,  525. 

X  Becknell  vs.  Hosier,  10  Ind.  App.,  5,  37  N.  E.  Rep.,  580. 

#  Van  Allen  vs.  Gordon,  83  Hun,  379. 


PRIVILEGED  COMMUNICATIONS.  529 

ever,  testify  that  he  is  the  family  physician,  and  that 
he  attended  the  patient,  giving  the  dates  and  number  of 
such  visits  made,  and  mentioning  the  examinations, 
prescriptions,  and  operations,  but  he  may  not  describe 
them  if  the  patient  objects.* 

The  question  of  privilege  has  repeatedly  arisen  in 
eases  where  insurance  companies  have  sought  to  avoid 
liability  upon  an  insurance  policy  by  showing  by  the 
assured's  physician  that  at  or  previous  to  the  time  of 
entering  into  the  contract  of  insurance  he  was  afflicted 
with  a  disease,  the  existence  of  which  he  had  denied  in 
his  application  for  insurance. 

In  an  application  for  insurance  it  is  usually  required 
of  one  to  give  the  name  of  his  physician  for  the  purpose 
of  verifying  the  applicant's  statements  regarding  the 
condition  of  his  health.  This  reference  does  not,  how- 
ever, amount  to  a  waiver  of  the  privilege,  and  will  not 
enable  the  insurance  company  to  place  such  physician 
upon  the  witness  stand  and  elicit  from  him  the  as- 
sured's physical  condition  at  the  time  or  times  men- 
tioned in  the  application,  f 

When,  however,  the  application  contains  a  clause 
waiving  all  provisions  of  the  law  preventing  a  physi- 


*  Van  Allen  vs.  Gordon,  supra;  Brie?enmeister  vs.  K.  of  P.,  81 
Mich.,  525. 

f  Edington  vs.  Mutual  Life  Assn.,  67  N.  Y.,  185 ;  Masonic  Mut.  Ben. 
Assn.  vs.  Beck,  77  Ind.,  203. 


530    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

cian  from  disclosing  any  information  acquired  in  at- 
tending the  applicant  in  a  professional  capacity,  the 
effect  will  be  to  completely  waive  the  privilege,  not  only 
as  to  the  assured,  but  also  to  any  one  claiming  a  benefit 
under  the  contract  of  insurance.* 

The  legislature  of  N"ew  York  in  1891  amended  the 
law  providing  for  the  protection  of  professional  commu- 
nications so  that  a  physician  could  not  be  examined  re- 
garding information  obtained  in  the  course  of  his  pro- 
fessional intercourse  "  unless  the  provisions  thereof  are 
expressly  waived  upon  the  trial  or  examination  by  .  .  . 
the  patient."  This  act  was  held  by  the  court  of  appeals 
not  to  apply  to  a  waiver  executed  prior  to  the  amend- 
ment of  the  law.f  And  the  supreme  court  has,  in  two 
well-considered  decisions,];  held  that  a  waiver  executed 
subsequent  to  the  enactment  of  the  law  may  be  used 
upon  the  trial  after  the  patient's  death  to  authorize 
a  disclosure.  In  the  case  of  Dougherty  vs.  Metropoli- 
tan liife  Insurance  Company,  the  court  said :  "  If  the 
patient  be  alive,  an  entry  upon  the  record  at  his  trial 
by  his  counsel  would  be  sufficient.  In  case  of  his  inabil- 
ity to  attend  the  trial,  a  written  stipulation  signed  by 


*  Adreveno  vs.  Mut.  Res.  Fund  Life  Assn.,  34  Fed.  Rep.,  8 70. 

f  Foley  vs.  Royal  Arcanum,  151  N.  Y.,  196,  45  N.  E.  Rep.,  456. 

\  Dougherty  vs.  Metropolitan  Life  Ins.  Co.,  87  Hun,  15,  33  N.  Y. 
Supp.,  8*73;  Holden  vs.  Metropolitan  Life  Ins.  Co.,  11  App.  Div.,  426, 
42  N.  Y.  Supp.,  310. 


PRIVILEGED  COMMUNICATIONS,  5^1 

him  and  entered  upon  the  record  would  remove  the  pro- 
hibition. 

"  That  being  so,  it  must  certainly  be  immaterial 
when  the  stipulation  is  signed.  In  this  case  it  was 
signed  long  before  the  trial  in  anticipation  of  that  event, 
and  with  design  of  having  it  used  thereat.  .  .  .  The 
reasonable  construction  of  the  statute,  therefore,  is  that 
the  provisions  are  expressly  waived  upon  the  trial  if  a 
proper  stipulation  to  that  effect  be  produced  thereat  and 
entered  upon  the  record,  regardless  of  the  time  when  the 
waiver  was  executed." 

With  the  evident  intent  of  overcoming  the  effect  of 
this  decision  and  nullifying  the  waiver  contained  in  the 
application  for  an  insurance,  the  legislature  of  New 
York,  in  1899,  amended  the  statute  by  adding  to  it  the 
following  words :  "  The  waivers  herein  provided  for  must 
be  made  in  open  court,  on  the  trial  of  the  action  or  pro- 
ceeding, and  a  paper  executed  by  a  party  prior  to  the 
trial,  providing  for  such  waiver,  shall  be  insufficient  as 
•such  a  waiver.  But  the  attorneys  for  the  respective 
parties  may,  prior  to  the  trial,  stipulate  for  such  waiver, 
and  the  same  shall  be  sufficient  therefor."  *  What  the 
effect  of  this  amendment  may  be  can  not  be  stated  until 
the  parties  interested  in  its  avoidance  have  devised 
means  to  accomplish  that  end,  and  those  means  have 
been  passed  upon  by  the  courts. 

*  Code  of  Civil  Procedure,  §  836. 


532    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

It  has  been  observed  that  the  privilege  does  not 
expire  with  the  life  of  the  patient.  The  question  there- 
fore naturally  arises  whether  or  not  the  privilege  may 
be  waived  after  the  patient's  death,  and,  if  so,  to  whom 
does  tliis  right  descend  ? 

The  'New  York  statute  previous  to  its  amendment 
in  1892  provided  that  privileged  communications  should 
not  be  disclosed  unless  the  "provisions  of  the  statute 
were  expressly  waived  by  the  patient."  It  was  there- 
fore held  under  tliis  statute  that  a  patient  by  dying 
without  first  waiving  his  privilege  rendered  it  impossi- 
ble to  remove  the  seal  of  secrecy  from  the  lips  of  his 
physician.*  Thus,  where  one  who  was  insured  com- 
mitted suicide,  and  his  insurance  policy  contained  a 
clause  providing  that  it  should  be  void  if  the  insured 
committed  suicide,  it  became  vital  to  the  validity  of  the 
policy  to  show  that  the  deceased  was  insane  and  either 
unconscious  of  the  act  which  he  performed,  causing  his 
death,  or  was  unable  to  understand  what  the  physical 
consequences  of  it  would  be.  In  order  to  show  this  the 
physician  who  had  attended  him  was  called,  but  upon 
the  evidence  being  objected  to  by  the  insurance  com- 
pany, the  court  held  that  under  the  statute  the  patient 
alone  could  waive  the  privilege,  and,  as  the  patient  was 
dead,  the  right  of  granting  permission  to  disclose  privi- 

*  Loder  vs.  Whelpley,  111  N.  Y.,  239. 


PRIVILEGED  COMMUNICATIONS.  533 

leged  matter  between  him  and  his  physician  had  also 
ceased,  and  that  the  physician  could  not  properly  be 
permitted  to  make  the  disclosure  asked.*  That  the 
injustice  worked  by  this  law  was  realized  is  evident,  for 
the  legislature  in  1892  amended  the  statute  so  as  to 
permit  the  physician  to  testify  when  the  privilege  was 
waived  by  the  personal  representative  of  the  deceased, 
or  in  case  of  a  will  contest  by  the  executors,  surviving 
husband  or  wife,  or  an  heir-at-law,  or  next  of  kin,  or 
any  other  party  in  interest,  except  that  the  physician 
should  not  be  permitted  to  disclose  confidential  com- 
munications and  such  facts  as  would  tend  to  disgrace 
the  memory  of  the  patient,  f 

The  rule  enforced  by  the  New  York  courts  previous 
to  the  amendment  of  the  statute  is  followed  by  the 
courts  of  California,  where  it  is  held  that  if  the  patient 
dies  without  having  waived  the  privilege,  the  matter 
forever  is  closed,  and  the  physician  will  under  no  circum- 
stances be  permitted  to  disclose  the  knowledge  obtained 
in  rendering  professional  services  to  the  deceased. J 
The  reason  assigned  for  this  strict  rule  is  the  similarity 
of  the  California  statute  to  that  of  New  York  as  it  for- 
merly existed. 


*  Westover  vs.  JEtna  Life  Ins.  Co.,  99  N.  Y.,  56. 
f  L.,  1892,  p.  1042,  ch.  514. 

X  In  re  Flint,  100  Cal.,  391,  34  Pac.  Rep.,  863 ;  Harrison  vs.  Sutter 
St.  Ry.  Co.,  116  Cal.,  156,  47  Pac.  Ref.,  1019. 


534:    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

The  supreme  courts  of  Michigan,  Missouri,  and  Indi- 
ana hold  to  a  contrary  doctrine  and  permit  the  per- 
sonal representative  of  the  deceased  to  waive  the  privi- 
lege, thus  qualifying  the  physician  to  testify  regarding 
matters  otherwise  prohibited.* 

In  Indiana  it  is  held  that  in  the  contest  of  a  will 
the  waiver  can  he  made  only  by  a  personal  representa- 
tive of  the  deceased — viz.,  an  executor  or  administrator 
— and  if  there  is  no  such  personal  representative  the 
physician  can  not  be  permitted  to  testify ;  f  but  in  case 
of  a  suit  upon  an  insurance  policy  the  wife  of  deceased, 
who  is  named  as  beneficiary,  is  competent  to  waive  the 
privilege.  J 

The  rule  which  seems  best  calculated  to  do  justice 
to  all  parties  is  that  laid  down  by  the  supreme  court  of 
Missouri  in  the  case  of  Thompson  vs.  Ish,*  which  is  that 
in  a  will  contest  any  party  claiming  under  the  deceased, 
whether  a  devisee  or  heir-at-law,  may  waive  the  privi- 
lege and  call  the  attending  physician  to  testify  regard- 
ing deceased's  mental  capacity. 

*  Fraser  vs.  Jennison,  42  Mich,  206;  Morris  va.  Morris,  119  Ind., 
341 ;  Denning  vs.  Butcher,  91  la.,  425,  59  N.  W.  Rep.,  69. 

■f  Gurley  vs.  Park,  135  Ind.,  440,  35  N.  E.  Rep.,  2*79. 
t  Penn.  Mnt.  Life  Ins.  Co.  vs.  Wiler,  100  Ind.,  92. 

*  Thompson  vs.  Ish,  99  Mo.,  160,  12  S.  W.  Rep.,  510. 


INDEX. 


Abortion,  at  common  law,  how  regarded,  404. 

at  common  law,  not  criminal  before  quickening,  405. 

at  common  law,  murder  when  death  of  mother  ensued,  406. 

at  common  law,  misdemeanor  after  quickening,  407. 

as  regarded  by  statutes,  407. 

advice  to  procure,  when  becomes  criminal,  410. 

conditions  existing  subsequent  to  operation,  competent  to  show, 
402. 

corpus  delicti,  how  shown,  435. 

elBcacious  means,  not  necessary  to  show  adoption  of,  to  establish 
crime,  412. 

Instruments  for  performing,  possession  of,  admissible,  449^56. 

justifiable,  when  legally,  421-424. 

mother,  when  regarded  guilty,  408. 

necessity  for  performing,  burden  of  proving,  424. 

necessity  for  performing,  how  to  be  shown,  421. 

pregnancy,  not  necessary  to  establish,  418. 

proof  of,  illustrations,  430-449,  465-479. 

time  sufficient  for  performing,  445. 

vitality  of  foetus  not  essential  to  commission  of  crime  of,  419. 

willingness  to  perform,  evidence  of,  admissible,  449. 
Adjudication,  effect  of  former,  56,  1.58,  220,  358. 
Advanced  state  of  medical  science,  skill  to  be  judged  by,  61,  209-274. 
Advertising,  when  unprofessional  conduct,  51. 
Agent,  when  act  of,  binds  corporation  for  physician's  fees,  105. 
Alabama,  qualifications  to  practise  in,  10. 
Alibi,  effect  of  proving,  463. 
Appeal  from  decision  of  examining  board,  24, 
Arizona,  qualifications  to  practise  in,  10. 

communications   between   physician   and   patient    privileged    in, 
481,  n. 
Arkansas,  qualifications  to  practise  in,  10. 

communications   between  physician   and   patient   privileged    in, 
481,   n. 

535 


536    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Assistance,    refusal    of,    by    physician    does    not    increase    obliga- 
tions, 284. 
Assistant,  physician  entitled  to  fees  for  services  of,  141. 
Attendance,  physician  not  to  discontinue,  without  notice,  72,  297. 
Attendant,   non-professional,  at  confinement  case,  325. 
Autopsy,  consent  to  perform,  necessary,  31.5. 

consent  to  perform,  from  whom  to  be  obtained,  136,  317. 

consent  to  perform,  when  not  necessary,  319. 

physician  performing  by  coroner's  orders  protected,  136,  319. 

Bandaging,  case  of  improper,  241. 

liability  of  physician  operating  but  not  attending  for  too  tight, 
258. 
Best  judgment,  what  is,  276-284. 

what  it  implies,  68. 

knowledge  and  skill  necessary  for  its  exercise,  274. 

physician  required  to  use,  68. 

physician  not  liable  for  error  of,  277. 

physician  should  not  operate  contrary  to,  except,  69,  281. 
Board  of  Medical  Examiners.     See  Examining  Board. 
Books  of  account,  how  to  be  kept,  200-209. 

what  should  show,  200. 

admissibility  of,  in  evidence,  197. 

inadmissible     because     disclosing     privileged     communications, 
when,  203,  510. 

California,  qualifications  to  practise  in,  11. 

communications   between   physician   and   patient   privileged   in, 
481,  n. 
Care  and  diligence,  contract  to  use,  implied,  63. 
Care,  degree  required,  240,  254-262. 

degree  of  required,  not  proportionate  to  injury  treated,  65. 
Certificate  of  admission,  how  issued  and  filed,  13. 

registration  or  filing  of,  32. 

registration  or  filing  of,  failure  of,  when  excusable,  37. 

registration  or  filing  of,  rights  of  physician  in  other  counties,  32. 
Character  of  physician,  not  competent  to  be  shown  in  defense  of 

action  for  compensation,  216. 
Cherokee  nation.     See  Indian  Territory. 

Child,  adult,  liability  of  parent  to  pay  physician's  fee  for  attend- 
ing, 84. 
Child,  liability  of  parent  to  pay  physician's  fee  for  attending,  80. 
Choctaw  nation.     See  Indian  Territory. 
"  Christian  Scientist,"   entitled  to  compensation,   142. 
Claims.     See  Estates  of  Decedents. 

Clairvoyant,   absent  husband  not  liable  for  fees  of,   in  attending 
wife,  88. 


INDEX.  537 

Colles's  fracture.     See  Fracture. 
Colorado,  qualilications  to  practise  in,  11. 

communications    between    physician    and    patient    privileged   in, 
481,  n. 
Common  law,  described  and  defined,  2. 

in  the  United  States,  4. 

stability  of,  how  secured,  4. 
Compensation.     See  Fees. 
Compensation.     See  Recovery  of  Compensation. 

right  to,  usually  based  on  implied  contract,  140. 

physician  entitled  to,  without  rendering  services,  when,  140. 

recovery  of,  171-238. 

proof  of  license  when  necessary  to  recovery  of,  187. 

right  of  unqualified  practitioner  to  recover,  172-177. 

right  of  unqualified  practitioner   to  recover   for  medicines  fui-- 
nished,  177-181. 

right  of  unqualified  practitioner  to  recover  compensation  after 
legal  disability  removed,  181. 

proof  of  employment,  194. 

statute  of  limitations,  right  to,  when  barred  by,  184—187. 

assistant,  physician  entitled  to,  for  services  of,  141. 

carelessness  in  regard  to  contagious  diseases,  effect  upon,  1G8. 

"  Christian  Scientist,"  entitled  to,  142. 

failure  to  benefit  patient,  right  to,  not  affected,  153-158. 

gratuitous,  intent  that  services  shall  be,  164-167. 

incompetency  and  neglect,  effect  of,  upon  right  to,  158. 

intoxication  of  physician,  effect  of,  upon  right  to,  167. 

mistake  as  to  disease  does  not  affect  right  to,  157. 

"  no  cure,  no  pay,"  right  to,  under  contract  of,  159-164. 

services  to  physicians,  right  to,  for,  167. 

"  spiritualist  "  entitled  to,  142. 

student,  physician  entitled  to,  for  services  of,  141. 

subsequent  visits,  physician  entitled  to,  for,  141,  215. 

Sunday,  physician  entitled  to,  for  services  on,  143. 
Conductor,  no  authority  in,   to   bind  railroad  for  physician's  fees, 

111. 
Confessions.     See  Evidence. 

Confidential  communications.     See  Privileged  Communications. 
Connecticut,  qualifications  to  practise  in,  10. 

non-resident  physician,  right  of,  to  consult  in,  16. 

non-resident  physician,  right  of,  to  practise  in,  15. 
Consent,  examining  without,  3.36. 

necessity  for,  before  operating,  313. 

necessity  for,  before  performing  autopsy,  315. 

to  performance  of  operation  presumed,  134. 
Consideration,   contract  must  be  based  upon,  92. 
Consultant's  fee,  patient  liable  for,  151. 


538    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Consultation,    meeting  of   plij^sicians   does   not   necessarily   consti- 
tute, 152. 

right  to  meet  in,  in  foreign  States,  16-20. 
Contagious  disease,  duty  of  physician  to  protect  patients  from,  72. 

effect  of  carelessness  in  regard  to,  upon  right  to  compensation, 
168. 

liability  of  physician  for  conveying,  to  patient,  338. 

physician  destroying  property  in  case  of,  protected,  137. 
Contract,  defined  and  classified,  59. 

express,  defined,  59. 

implied,  defined,  59. 

for  medical  treatment  includes  surgical  cases,  73. 

Sunday,  for  medical  services  valid,  79. 
Contract  of  patient,  implied  by  law,  75. 

payment  of  physician's  fees,  75. 

to  obey  instructions  of  physician,  78. 
Contract  of  physician,  implied  by  law^,  60. 

implied,  not  altered  by  refusal  of  profllered  assistance,  65. 

not  implied  to  effect  a  cure,  71. 

payment  of  consultant's  fees,  77. 

to  continue  attendance  while  needed,  72. 

to  follow  established  modes  of  treatment,  69. 

to  give  proper  instructions,  71. 

to  protect  patients  from  contagious  disease,  72. 

to  use  best  judgment,  68. 

to  use  care  and  diligence,  63. 

to  use  skill  and  knowledge,  60. 

where  services  are  gratuitous,  66. 
Contributory  negligence,  what  is,  347. 

in  mitigation  of  damages,  351. 

wlien  a  defense  to  suit  by  patient,  348. 

when  not  defense  to  suit  by  patient,  350. 
Coroners,   right  of,   to  choose  physician  to  perform   post-mortem, 

128,  129. 
Coroners'  inquests,  fees  for  performing  post-mortems  at,  liability 

of  towns  for,  122. 
Corporation,   liability  of,   for  fees   when  summoning  physician  to 
attend  employee,  102,  104-121. 

who  has  authority  to  bind,  for  payment  of  fees,  105-111. 
-     who  has  not  authority  to  bind,  for  payment  of  fees,  111-113. 

except  when,  113,  114. 

ratification  of  unauthorized  employment  for,  114. 

ratification   of   unauthorized   employment,    method   of   securing, 
119. 
Counties  and  towns,  services  to  paupers,  liability  of,  for,  121. 
Counties,   negligence  of  physician   in  treating  patients  at  county 
hospitals,  not  liable  for,  132. 


INDEX.  539 

Counties,  partial  allowance  of  bill  by,  extinguishes  elaim  against 

patient,  1(J9. 
Criminal  abortion.     See  Abortion. 
Criminal  intent,  when  presumed,  386. 
Criminal  law,  subject  to  statutory  regulation,  386. 
Criminal  liability,  distinguished  from  civil,  385. 

jury  to  determine  when  negligence  amounts  to,  401. 

when  ignorance  or  negligence  becomes,  387-401. 
Criminal  trials,  legal  safeguards  to  accused  in,  428. 
Cure,  no  implied  contract  to,  by  physician,  71. 

Damages,  measure  of,  defined,  372. 

nominal,  defined,  372. 

nominal,  illustrated,  375. 

substantial  or  compensatory,  defined,  372. 

compensatory,  includes  what,  373. 

compensatory,  illustrated,  37G. 

exemplary,  defined,  372,  374. 

exemplary,  illustrated,  380. 

assessment  of,  to  include  future  loss,  374,  383. 
Dead  body,  legal  status  of,  315. 

right  to,  in  whom,  136,  317. 

of  child,  right  to,  in  father,  136,  317. 

of  husband,  right  to,  in  wife,  136,  317. 

of  parent,  right  to,  in  child,  317. 

of  wife,  right  to,  in  husband,  136,  317. 
Deceit  and  misrepresentation,  what  amounts  to,  344. 
Delaware,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 
Dentist,   implied  by  contracts  to  use  skill  and  care,  67. 
Diagnosis,  incorrect,  legal  effect  of,  246. 
Diligence.     See  Care. 
Diploma,  as  requirement  to  practise,  10. 

must  be  shown  to  belong  to  applicant,  11. 

how  proved,  192. 
Dishonorable.     See  Revocation  of  License. 
Dislocation,  failure  to  reduce,  legal  effect,  247-252. 
District  of  Columbia,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 

non-resident  practitioners,   right  of,   to  practise  in,   15. 
Division  superintendent,   authority  in,   to  bind  railroad  for  physi- 
cian's fees,  108. 
Doctor,  physician  and  surgeon  defined,  21. 

Drunkenness  of  physician  defense  to  action  for  compensation,  219. 
Dying  declaration.     See  Evidence. 

Emergency  case,  what  is,  49. 
35 


540    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Emploj'er,    not   liable  for  negligence  of  physician   in  treating  em- 
ployee, 131. 
Employer.     See  Corporation.     Servant.     Seaman. 
Engineer.     See  Corporation. 
Estabiislied  mode  of  treatment,  what  is,  69,  288. 

physician's  contract  to  follow,  implied,  69. 

physician  must  follow,  69,  286. 
Estates  of  decedents,  collection  of  claims  against,  22L 

amount  of  claim  affected  by  value  of,   146. 

claims  against,  by  whom  to  be  presented,  222. 

claim  against,   co  whom  to  be  presented,  223. 

claims  against,  manner  of  presentation,  223. 

claims  against,  how  to  be  prepared,  223. 

order  of  payment  of  debts  against,  225. 

validity  of  claims  against,  231. 

claim  for  services  to  deceased  wife  not  valid  against  estate  of, 
except  when,  231. 

contested  claims  against,  how  proved,  233  et  seq. 

communications   with   deceased   when   not    admissible   to    prove 
claim  against,  233. 

competency    of    evidence    of   physician's    wife   to    prove   claims 
against,  235. 

books  of  physician,  when  admissible  to  prove  claim  against,  234. 
See  197. 
Evidence,  admissibility  of,  to  be  decided  by  judge,  430. 

admissions  against  interest,  admissible,  434,  453. 

best  evidence  only  is  admissible,  431. 

conditions  existing  subsequent  to  operation,  competent  to  show 
abortion,  462. 

confessions  admissible,  434. 

dying  declarations,  admissibility  of,  434. 

dying  declarations,  must  state  material  facts,  457. 

dying  declarations,  when  admissible,  456. 

expressions  showing  feelings  as  competent,  4.32. 

hearsay  not  competent,  4,S1. 

hearsay  not  competent,  exceptions,  432-435. 

possession  of  suitable  instruments  for  performing  abortion  ad- 
missible as,  449-456. 

res  gestce,  admissible,  432. 

res  gestw,  what  admissible  as,  459-462. 

res  gestw,  what  constitute,  432. 

willingness  to  perform  abortion  admissible  as,  449^56. 
Examination,  consent  necessary  before  making,  336. 

liability  for  erroneous  conclusion  at,  335. 

medical  college  can  not  arbitrarily  refuse,  28. 
Examining  board,  power  to  issue  license,  13. 

power  to  revoke  license,  51. 


INDEX.  541 

Examining  board,  action  not  final,  27. 

appeal  from  decision  of,  24. 

decision  of,   reviewed  by  mandamus,  when,  25. 

irregularly  appointed,  certificate  from,  valid,  50. 
Extension.     See  Fracture. 

False  pretense,  wliat  amounts  to  obtaining  money  under,  402. 
Fees.      See    Compensation.      Counties    and    Towns.      Coroners'    In- 
quest.    Estates  of  Decedents.     Recovery  of  Compensation. 

amount  of,  affected  by  value  of  patient's  estate,  146. 

amount  of,  not  affected  by  patient's  financial  circumstances,  149. 

collection  of,  from  estates  of  decedents,  221. 

consultant's,   patient  liable  for,   when,  77,  151. 

consultant's,  physician  liable  for,  when,  77,  151. 

contract  reserving  right  by  employer  to  determine  amount  of, 
when  valid,  110. 

corporation,  liability  of,  for  summoning  physician  to  attend  em- 
ployee, 102,  104-121. 

father,  liability  of,  for  payment  of,  80. 

husband,  liability  of,  for  payment  of,  86. 

judgment  for,   effect  upon  action  for  malpractice,   220. 

implied  contract  of  patient  to  pay  physician's,  75. 

implied  contract  of  patient  to  pay  consultant's,  77. 

malpractice  as  defense  to  action  for  recovery  of,  217. 

master,  liability  of,  for  attendance  upon  servant,  89. 

mother,  liability  of,  for  attendance  upon  child,  83. 

prolonged  visit,  increase  of,  for,  143. 

rate  of,  determined  by  local  customs,  143. 

rate  of,  not  determined  by  local  customs,  when,  144,  151. 

rate   for    performing    operation    less    affected    by    customs,    144, 
149. 

third  parties,  liability  of,  for  summoning  physician,  94. 

third  party,  liability  of,  must  be  based  on  consideration,  92. 

third  party,  when  contract  of,  for  payment  of,  must  be  in  writ- 
ing, 91. 

unqualified  physicians,  right  of,  to,  prohibited  by  statute,  14. 

vessels,  liability  of,  for  attendance  on  seamen,  89. 

who  ma3'  bind  corporation  for  payment  of,  105-111. 

wlio  may  not  bind  corporation  for  payment  of,  111-113;  except 
when,  113,  114. 
Felony,  definition  of,  12,  note. 

disqualification  to  practise  in  certain  States,  12. 
Filing  certificate.     See  Certificate  of  Admission. 
Florida,   qualifications  to  practise  in,   10. 
Former  adjudication,  effect  of,  56,  158,  220,  358. 
Fracture,  Colles's,  illustrating  case  of,  improper  treatment  of,  242. 

effect  of  failure  to  discover,  246. 


542    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Fracture,  failure  to  apply  extension  to,  legal  effect  of,  252-254. 
Future  damages,  can  not  be  recovered  in  separate  action,  374,  383, 

General   manager,    autliority    in,    to    bind   railroad    for   physician's 

fees,  108. 
Georgia,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 
Gratuitous  services,  contract  of  physician  with  patient  not  altered, 

66,  308. 
Gross  negligence,  when  criminal,  387-401. 

Husband,  consent  of,  to  operation  on  wife,  133. 
liability  of,  for  fees  in  attending  wife,  86. 

absent,  not  liable  for  fees  of  clairvoyant  for  attending  wife,  88. 
rights  of,  138-137. 

supposititious,  liability  of,  for  physician's  fees  in  attending  sup- 
posed wife,  87. 

Idaho,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 

communications   between   physician   and   patient    privileged   in, 
481,  n. 
Illinois,  qualifications  to  practise  in,  10. 
Immoral  conduct.     See  Revocation  of  License. 
Incompetency,  effect  of,  upon  right  to  compensation,  158. 
Indiana,  qualifications  to  practise  in,  11. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 

non-resident  practitioners,  right  of,  to  practise  in,  15,  16. 

communications   between    physician   and   patien*   privileged    in, 
481,  n. 
Indian  Territory,  qualifications  to  practise  in,  11. 
Inquisition   of   lunacy,    privileged    communications,    application   of, 

514. 
Insanity,  liability  for  wrongful  certificate  of,  327. 
Instructions,  physician  required  to  give  proper,  for  care  of  patient, 

70,  293. 
Instructions  of  physician,  patient  bound  to  obey  reasonable,  78,  348. 
Intoxication  of  physician,  legal  effect  of,  401. 

effect  of,  upon  right  to  compensation,  167. 
Iowa,  qualifications  to  practise  in,  10. 

communications   between   physician   and   patient   privileged  in, 
481,  n. 
Irregularly  appointed  board,  certificates  or  licenses  from,  valid,  50. 
Issuing  and  filing  certificate  or  license,  13. 
Itinerant  and  traveling  doctors,  who  are,  38. 

Judgment.     See  Best  Judgment.     Qualifications  of  Physicians. 
Jury  trial,  guaranteed  in  criminal  cases,  428. 


INDEX.  54,3 

Kansas,  qualifications  to  practise  in,  11. 

communications    between    physician    and    patient    privileged   In, 
481,  n. 
Kentuclcy,  qualifications  to  practise  in,  11. 

non-resident  practitioners,  right  of,  to  practise  in,  15. 
Knowledge,  degree  of,  required,  60,  254-262. 

admission  of  inadequacy  of,  effect,  284. 

Last  Illness,  expenses  of,  when  preferred,  227. 

what  is  construed  to  be,  227. 
Law,  origin  and  development  of,  1. 

divisions  of,  2. 

statute,   construction  of,  6. 
Laws,  how  enforced,  14. 

Legislature  has  authority  to  prescribe  qualifications  of  physicians,  9. 
Liability,  to  whom  right  of  action  accrues,  3.56. 
Liability  of  physicians.     See  Qualifications  of  Physicians. 

how  affected  by  dismissal  from  case,  244. 

to  father  for  injury  to  child,  356. 

to  husband  for  injury  to  wife,  356. 
License.     See  Certificate. 

registration  of,  32. 

registration  of,  failure  of,  when  excusable,  37. 

when  necessary  prerequisite  to  recovery  of  compensation,  172, 
187. 
License  to  practise,  to  be  issued  by  examining  board,  13. 

how  Issued  and  filed,  13. 

previous  practice  as  qualification  foi',  19. 

proof  of,  102. 

revocation  of,  51. 
Life,  right  of  physician  to  terminate,  402. 
Limitations,    statute  of,    when   bar   to    recovery   of   compensation, 

184-187. 
Location  of  physician,   considered  In  determining  amount  of  skill 

and  knowledge  required,  62,  255. 
Louisiana,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 

Maine,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  practise  in,  15. 
Malpractice,  as  defense  to  action  for  recovery  of  fees,  217. 

burden  of  proving,  364. 

burden  of  proving  on  party  alleging,  217. 

character  of  proof  required  to  show,  218. 

effect  of  judgment  for  fees  upon  action  for,  220,  358. 

how  mnst,  be  proved,  .360. 

may  bo  assumed,  when,  CGO. 


544    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Mandamus,  writ  of,  definition,  25. 

proper  to  review  decision  of  examining  board,   when,  25. 
Maryland,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  riglit  of,  to  consult  in,  16. 
Massachusetts,   qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  practise  in,  15. 
Master,  liability  of,  for  physician's  fees  in  attending  servant,  89,  105. 
Master  and  servant.     See  Corporation. 

Messenger  summoning  physician,  liability  of,  for  physician's  fees,  94. 
Michigan,  qualifications  to  practise  in,  11. 

communications    between    physician   and    patient    privileged    in, 
481,  n. 
Minnesota,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  In,  16. 

communications   between  physician  and   patient   privileged   in, 
481,  n. 
Mississippi,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  practise  in,  15,  16. 
Missouri,  qualifications  to  practise  in,  11. 

communications    between   physician   and    patient    privileged    in, 
481,  n. 
Montana,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 

communications    between    physician   and    patient    privileged    in, 
481,  n. 

Neliraska,   qualifications  to  practise  In,   11. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 

communications    between   physician   and    patient    privileged    in, 
481,   n. 
Neglect,  effect  of,  upon  right  to  compensation,  158. 
Negligence,   counties  not  liable  for  that  of  physicians  in  treating 
patients  in  county  hospitals,  132. 

employer  not  liablefor  thatof  physician  in  treating  employee,  131. 

liability  for,  in  making  examination,  139. 

liability  of  physician  for  that  of  physician  recommended,  304. 

physician  liable  for  that  of  partner,  3.58. 

physician  liable  for  that  of  student,  286. 
Nevada,  qualifications  to  practise  in,  11. 

communications   between   physician   and   patient   privileged   in, 
481,  n. 
New  Hampshire,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 

non-resident  practitioners,  right  of,  to  practise  In,  15,  16. 
New  Jersey,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 

non-resident  practitioners,  right  of,  to  practise  in,  35,  16. 


INDEX.  545 

New  Mexico,  qualifications  to  practise  in,  11. 
New  Yorli:,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  16. 
non-resident  practitioners,  right  of,  to  practise  in,  15,  16. 
communications   between    physician    and    patient    privileged    in, 
481,  n. 
"  No    cure,    no    pay,"    rights    to    compensation    under    contract    of, 

159-164. 
Non-professional  attendant,  physician  liable  for  having,  at  confine- 
ment case,  325. 
Non-resident  physician,  privileges  accorded  to,  by  certain  States,  15-20. 
North  Carolina,  qualifications  to  practise  in,  10. 

non-resident  practitioners,   right  of,  to  consult  in,  16.    ' 
non-resident  practitioners,  right  of,  to  practise  in,  15. 
communications   between    physician    and    patient    privileged    in, 
481,  n. 
North  Dakota,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  17. 
communications   between   physician    and    patient   privileged    in, 
481,  n. 

Ohio,  qualifications  to  practise  in,  11. 

non-resident  practitioners,  right  of,  to  consult  in,  17. 

non-resident  practitioners,  right  of,  to  practise  in,  15,  16. 

communications  between   physician   and   patient   privileged   in, 
481,  n. 
Oklahoma  Territory,  qualifications  to  practise  in,  11. 

communications   between    physician    and    patient   privileged    in, 
481,  n. 
Operation,  consent  to,  when  necessary,  133,  313. 

consent  to,  when  presumed,  134,  313. 

duty  to  advise  against,  when  contrary  to  best  judgment,  69. 
Oral  contracts,  defined,  60. 
Oregon,  qualifications  to  practise  in,  10. 

communications   between   physician   and   patient   privileged    in, 
481,  n: 

Parent,  liability  of,  for  physician's  fees,  80. 

liability  of,   for  physician's  fees  when  divorced,   83. 
liabilitj-  of,  for  fees  for  attendance  on  adult  child,  84. 
Partner,  liability  of  physician  for  negligence  of,  358. 
Passengers,   railroad  liable  for  services  rendered  to,   upon  request 
of  certain  oflicers,  105. 
railroad  not  liable  for  services  rendered  to,  upon  request  of  cer- 
tain agents.  111. 
Patent   medicines,    when    venders  of,    held    to   be   practising   medi- 
cine, 47. 


546    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Paupers.     See  Counties  and  Towns. 
Pennsylvania,  qualilications  to  practise  in,  10. 

non-resident  practitioners,   right  of,  to  consult  in,  17. 

non-resident  practitionei's,  right  of,  to  practise  in,  15,  16. 

communications   between    physician    and    patient    privileged    in, 
481,  n. 
Physician,  surgeon,  doctor,  defined,  21. 
Physicians,    right   to   compensation   for   medical   services  rendered 

to,  167. 
Place  of  trial  in  criminal  cases,  428. 
Police  power  of  the  State  defined,  18. 
Post-mortem.     See  Autopsy. 

fees  for  performing,  at  coroner's  inquest,  122. 
Practice,  right  of  a  physician  to  leave  temporarily,  considered,  299. 
Practice  of  medicine,  early  English  statutes  regulating,  8. 

no  restrictions  upon,  at  common  law,  8. 

right  to  practise,  generally,  8. 

general  classification  of  requirements  for,  9. 

former  practice  in  other  State  as  qualification  for,  30. 

statutory  restrictions  on,  in  United  States,  9. 

statutory  regulations  constitutional,  17. 

statutory  regulations,   certain,   unconstitutional,   21. 

laws  regulating,  how  enforced,  14. 

without  license,  improper  refusal  of  Certificate  no  defense,  50. 
Practising  medicine,  what  constitutes,  89. 

without  license,  eiTect  of  repeal  of  statute,  58,  181. 
Prescriptions,  liability  for  negligence  in  writing,  343. 
President  of  railroad,  authority  in,  to  bind  railroad  for  physician's 

fees,  106. 
Presumption  of  innocence,  how  overcome,  429. 
Previous   practice   as   qualification   of   candidate   to   practise,    30. 
Privileged  communications,   classification  of,  480. 

professional  communications  as  regarded  at  common  law,  481. 

autopsy,  knowledge  gained  at,  is  not,  496. 

based  upon  public  policy,  480. 

books  of  account  when  inadmissible  because  disclosing,  510. 

consultant,  knowledge  obtained  by,  at  consultation  is,  493, 

criminal  cases,  application  to,  483,  514. 

dentist,  information  imparted  to,  is  not,  497. 

criminal  case,  not  extended  to,  by  several  States,  483. 

inquisition  of  lunacy,  application  in,  514. 

jail    physician,    information   imparted   to,    in   professional    way 
is,   493. 

mental  condition  may  be  shown  by  physician  when,  488. 

partner  of  attending  physician,  information  imparted  to,  is,  495. 

regulations  of,  by  laws  of  several  States,  481. 

relation  of  phj'siciau  and  patient  must  exist,  484. 


INDEX.  547 

Privileged  communications,   relation  of  physician  and  patient,  pa- 
tient must  show  exists,  485. 

testamentary  capacity,  applies  to  knowledge  regarding,  511. 

third  party,   when  information  imparted  by,   is,  4'J4. 

to  whom  privilege  belongs,  518. 

unlicensed  physicians,  communications  with,  not,  484. 

waiver  of,  520. 

waiver,  effect  of,  in  application  for  insurance,  529. 

waiver,  effect  of,  made  at  former  trial,  527. 

waiver,   general  deuial  of  patient  in  suit  by  physician  for  fees 
does  not  amount  to,  195,  528. 

waiver,  how  made,  521. 

M'aiver,  in  whom  is  right  of,  after  patient's  death,  532. 

waiver,  suit  for  malpractice  against  physician  constitutes,  528. 

waiver,  Avhat  amounts  to,  521. 

what  information  is,  497-511. 

what  information  not  included,  497-511. 
Professional  communications.     See  Privileged  Communications. 
Promissory  note,  for  future  services  conditional,  168. 
Proprietary  mediciues,  when  seller  of,  is  practising  medicine,  47. 
Proving  diploma,  12. 

Qualifications  of  physicians,  general,  required  by  law,  240. 
general  rule  of,  illustrations  of  application  of,  240. 
required  of  all  professing  to  act  as  physicians,  63. 

Railroad.     See  Corporation. 

Railroad  physician,  no  power  in,  to  bind  railroad  for  care  and  board 
of  employee,  312. 

not  l)ound  to  attend  trespasser  injured  by  railroad,  when,  111. 
•Ratification,  by  corporation  of  unauthorized  employment,  114. 

by   corporation   of  unauthorized   employment,    method   of   secur- 
ing, 119. 

chief  surgeon,  not  authorized  to  bind  corporation  by,  120. 

must  be  by  whom,  to  bind  corporation,  115. 
Reason,  foundation  of  law,   6. 
Recovery  of  compensation.     See  Estates  of  Decedents. 

action  for,  did  not  lie  in  England,  182. 

books  of  account,  when  admissible  to  prove  case,  197. 

defenses  to  actions  for,  215. 

drunkenness  of  physician  as  defense  to,  219. 

license,  when  necessary  to  prove,  14,  187. 

negligence  of  nurses  in  hospital  no  defense  to  action  for,  219. 

professional  services,  how  may  be  shown,  194. 

proof  of,  value  of  services,  209. 
Refusal  to  accept  patient,  physician's  right  of,  239. 
Registration  of  certificate,  32. 


548    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Registration  of  certificate,  rights  of  pliysician  in  others  than  coun- 
ty of,  32. 

when  failure  to,  excusable,  37. 
Removal  to  another  county,  13. 
liemoval  to  another  State,  12. 

Repeal  of  statutes  restricting  practice,  effect  of,  58,  181. 
Requirements  of  physician,  general  classification  of,  9. 

admission  of  inadequacy  of  skill,  effect  upon,  284. 

not  affected  because  services  gratuitous,  66,  308. 

not  increased  by  refusal  of  proffered  assistance,  284. 

same  attach  to  all  exercising  functions  of  physician,  310. 
Res  gestw.     See  Evidence. 

Ken  judicata,  effect  of  judgment  for  fees  upon  action  for  malprac- 
tice, 1.58,  220,  358. 
Revocation  of  license,  grounds  for,  51. 

misrepresenting  character  of  disease,  ground  for,  52. 

power  usually  in  examining  board,  51. 

practise  in,  57. 

unprofessional,  dishonorable,  and  immoral  conduct  ground  for,  51. 

act  of  board  not  final,  57. 

rights    of    physician    pending    appeal    from    order    revoking    li- 
cense, 57. 
Rhode  Island,  qualifications  to  practise  in,  11. 

non-resident  practitioners,  right  of.  to  practise  in,  15. 
Roadmaster,  no  authority  in,  to  bind  railroad  for  physician's  fees, 
111. 

School  of  medicine,  skill  to  be  judged  by  one's,  262-269. 

clairvoyants  belong  to  none,  267. 
Seanian,    liability   of   vessel's   owners   and   masters   for  attendance 

upon.  89. 
Servant,  liability  of  master  for  payment  of  physician's  fees  in  at- 
tending, 89,  105. 
Skill.    See  Qualifications  of  Physician. 

degree  required,  60,  254-262. 

liability  for  absence  of,  in  making  examination,  139. 

rules  for  determining,  61-63,  262-274. 

admission  of  inadequacy  of,  effect,  284. 
Skill   and    knowledge,    location   of   physician    considered    In    fixing 

amount  reeiuired,  62,  255. 
South  Carolina,  qualifications  to  practise  in,  10. 

non-resident  practitioners,   right  of,  to  consult  in,  17. 
South  Dakota,  qualifications  to  practise  in,  11. 
"  Spiritualist,"  entitled  to  compensation,  142. 
Sidints,  improper  application  of,  245. 

Station    agent,    no    authority    in,    to    bind    railroad    for   physician's 
fees,  111. 


INDEX.  549 

Statute  law,  what  is,  6. 

Statute  of  frauds,  what  contracts  fall  within,  91. 

Student,  physician  entitled  to  fees  for  services  of,  141. 

physician  liable  for  negligence  of,  286. 
Summoning  physician,  liability  of  party,  for  payment  of  fees,  94. 
Summoning  physician  for  employee,  liability  of  corporation  for  part 

of  fees,  102,  104-121. 
Sunday  contracts  for  medical  services  valid,  79. 
Sunday,  physician  entitled  to  compensation  for  services  on,  142. 
Superintendent,  authority  of,  to  bind  railroad  for  physician's  fees, 

lOG. 
Surgeon,  physician,  doctor,  defined,  21. 
Survival  of  action,  common-law  doctrine  changed  by  statute,  356. 

Tennessee,  qualifications  to  practise  In,  10. 

non-resident  practitioners,   right  of,  to  consult  in,  17. 
Texas,  qualifications  to  practise  in,  10. 
Third  parties,   who  are,   80. 

liability  of,   for  physician's  fees,  80-131. 

liability  of,  for  fees  when  summoning  a  physician,  94. 

liability  of,  for  physician's  fees  must  be  based  upon  considera- 
tion, 92. 

must  be  privity  of  contract  with  physician  to  be  bound  for  fees, 
110. 

rights  of,  133. 

when  promise  of,  to  pay  must  be  in  writing,  91. 
Towns,  liability  of,  for  services  to  paupers,  121. 

partial  allowance  of  bill  by,  extinguishes  claim  against  patient, 
l(i9. 
Traveling  doctor.     See  Itinerant. 

Unlicensed  physicians,  communications  with,  not  privileged,  484. 
Unprofessional  conduct.     See  Revocation  of  License. 
Unqualified   practitioner,    right   to    compensation   for   services   ren- 
dered before  repeal  of  disqualifying  act,  181. 

riglit  of,  to  recover  compensation,  172-177. 

right  of,  to  recover  for  medicines  furnished,   177-181. 
Utah,   qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  17. 

communications  between   physician   and   patient   privileged    in, 
481,  n. 

"Value  of  services,  how  proved  In  suit  to  recover  compensation,  209. 

Vermont,  qualifications  to  practise  in,  11. 

Vessel,  liability  of,  for  attendance  upon  seamen,  SO. 

Virginia,  qualifications  to  priicti.«e  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  17. 


550    THE  LAW  IN  ITS  RELATIONS  TO  PHYSICIANS. 

Washington,  qualifications  to  practise  in,  10. 

communications  between   pliysician   and   patient   privileged   in, 
481,  n. 
West  Virginia,  qualifications  to  practise  in,  10. 

non-resident  practitioners,  right  of,  to  consult  in,  17. 
Wisconsin,  qualifications  to  practise  in,  11. 

non-resident  practitioners,  right  of,  to  consult  in,  17. 

communications   between    physician    and    patient   privileged    in, 
481,  n. 
Witnesses,  accused  may  compel  attendance  of,  430. 

accused  to  be  confronted  by,  429. 
Written  contracts  defined,  59. 
Wyoming,  qualitications  to  practise  in,  11. 

non-resident  practitioners,  right  of,  to  practise  in,  15,  16. 

non-resident  practitioners,  right  of,  to  consult  in,  17. 

communications  between   physician   and   patient   privileged    in, 
481,  n. 


THE   END. 


McMASTER'S   FIFTH   VOLUME. 


History  of  the  People   of  the  United 
States. 
By  Prof.  John  Bach  McMaster.    Vols.  I,  II,  III, 
IV,  and  V  now  ready.      8vo.     Cloth,  with   Maps, 
12.50  per  volume. 

The  fifth  volume  covers  the  time  of  the  administrations  of 
John  Quincy  Adams  and  Andrew  Jackson,  and  describes  the 
development  of  the  democratic  spirit,  the  manifestations  of  new 
interest  in  social  problems,  and  the  various  conditions  and  plans 
presented  between  1821  and  1830.  Many  of  the  subjects  in- 
cluded have  necessitated  years  of  first-hand  investigations,  and 
are  now  treated  adequately  for  the  first  time. 

"John  Bach  McMaster  needs  no  introduction,  but  only  a  greeting;.  .  .  . 
The  appearance  of  this  fifth  volume  is  an  event  in  American  literature 
second  to  none  in  importance  this  season." — New  York  Times. 

"This  volume  contains  576  pages,  and  every  page  is  worth  readirg. 
The  author  has  ransacked  a  thousand  new  sources  of  information,  and  has 
found  a  wealth  of  new  details  throwing  light  upon  all  the  private  and  public 
activities  of  the  American  people  of  three  quarters  of  a  century  ago." — ■ 
Chicago  Tribune. 

"  In  the  fifth  volume  Professor  McMaster  has  kept  up  to  the  high  standard 
he  set  for  himself  in  the  previous  numbers.  It  is  hard  to  realize  thoroughly 
the  amount  of  detailed  work  necessary  to  produce  these  books,  which  con- 
tain the  best  history  of  our  country  that  has  yet  been  pubhshed." — Philadel- 
phia Telegraph. 

"  The  first  installment  of  the  history  came  as  a  pleasant  surprise,  and 
the  later  volumes  have  maintained  a  high  standard  in  regard  to  reseaich 
and  style  of  treatment." — New  York  Critic. 

"A  monumental  work.  .  .  .  Professor  McMaster  gives  on  every  page 
ample  evidence  of  exhaustive  research  for  his  facts." — Rochester  Herald. 

"The  reader  can  net  fail  to  be  impressed  by  the  wealth  of  material  out 
of  which  the  author  has  weighed  and  condensed  and  arranged  his  matter." 
— Detroit  Free  Press. 

"  Professor  McMaster  is  our  most  popular  historian.  .  .  .  He  never 
wearies,  even  when  dealing  with  subjects  that  would  be  most  wearsome 
under  clumsier  handling.  This  fifth  volume  is  the  most  triumphant  evi- 
dence of  his  art." — New  York  Herald. 

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A  WORK  OF  GREAT  VALUE. 

The  International  Geography. 

By   Seventy    Authors,    including    Right  Hon.    James 
Bryce,  Sir  W.  M.  Conway,  Prof.  W.  M.  Davis,  Prof. 

Angelo  Heilprin,   Prof.  Fridtjof  Nansen,  Dr.  J.  Scott 

Keltie,  and   F.    C.    Selous.      With   488  Illustrations. 

Edited   by   Hugh    Robert    Mill,    D.  Sc.  8vo.      1088 
pages.     Cloth,  $3.50. 

"  Can  unhesitatingly  be  given  the  first  place  among  publications  of 
its  kind  in  the  English  language.  ...  An  inspection  of  the  list  of  asso- 
ciate authors  leads  readily  to  the  conclusion  that  no  single  volume  in 
recent  scientific  literature  embodies,  in  original  contributions,  the  labor 
of  so  many  eminent  specialists  as  this  one.  .  .  .  The  book  should  find 
a  place  in  every  library,  public  or  private,  that  contains  an  atlas  or 
gazetteer." — The  Nation. 

"  The  attempt  to  present  in  one  volume  an  authoritative  modern 
summary  of  the  vi'hole  of  geography  as  fully  as  space  would  permit  has 
been  admirably  successful." — New  York  Sun. 

"  In  brief,  it  may  be  said  to  be  both  a  reference  book  and  a  con- 
nected geographical  history  of  the  modern  world,  something  that  any 
one  can  read  with  profit  in  addition  to  finding  it  of  constant  value  in 
his  library." — Chicago  Evening  Post. 

"  In  his  entirely  studious  moments  the  geographer  cherishes  above 
all  things  facts  and  accuracy.  He  must,  therefore,  value  very  highly 
a  work  like  the  '  International  Geography.'  It  should  be  precious  alike 
to  the  specialist  and  to  the  beginner.  .  .  .  Small  but  adequate  maps  are 
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York  Tribune. 

"Simply  invaluable  to  students,  teachers,  and  others  in  need  of 
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"  Not  only  as  complete  as  the  limits  would  allow,  but  is  strictly 
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THE  LIBRARY  OF  USEFUL  STORIES. 

Illustrated.     J6mo.     Cloth,  40  cents  per  volume. 

NOW  READY. 
The   Story  of  the   Alphabet.     By  Edward  Clodd. 

The  Story  of  Eclipses.    By  g.  f.  chambers. 
The  Story  of  the  Living  Machine.    By  h.  w.  Conn. 
The  Story  of  the  British  Race.    By  John  munro,  c.  e. 
The  Story  of  Geographical  Discovery.     By  Joseph 

Jacob  5. 

The  Story  of  the  Cotton  Plant.  By  f.  Wilkinson,  f.g.s. 

The  Story   of  the    Mind.     By  Prof.  J.  mark  Baldwin. 
The  story  of   Photography.      By  Alfred  T.  Story. 

The  Story  of  Life  in  the  Seas.    By  Sidney  j.  hickson. 

The  story  of  Germ  Life.    By  Prof.  h.  w.  conn. 

The  Story  of  the  Earth's  Atmosphere.    By  Doug- 
las Archibald. 

The  Story  of  Extinct  Civilizations  of  the  East. 

By  Robert  Anderson,  M.  A.,  F.  A.  S. 

The  Story  of  Electricity.    By  John  Munro,  c.  e. 
The  Story  of  a  Piece  of  Coal.   By  e.  a.  martin,  f.g.s. 
The  Story  of  the  Solar  System.    By  c.  f.  chambers, 

F.  R.  A.  S. 

The  Story  of  the  Earth.    By  h.  g.  Seeley,  f.  r.  s. 
The  Story  of  the  Plants.    By  grant  allen. 
The  Story  of  "Primitive"  Man.    By  Edward  Clodd, 
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OTHERS    IN   preparation. 

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The  Races  of  Europe. 

A  Sociological  Study.  By  William  Z.  Ripley, 
Ph.  D.,  Assistant  Professor  of  Sociology,  Massa- 
chusetts Institute  of  Technology  ;  Lecturer  in  An- 
thropology at  Columbia  University,  in  the  City  of 
New  York.  Crown  8vo,  cloth;  650  pages,  with  85  Maps 
and  235  Portrait  Types.  With  a  Supplementary  Bibliography  of 
nearly  2,000  Titles,  separately  bound  in  cloth,  issued  by  the 
Boston  Public  Library.      178  pages.     -      -      -     -      Price,  ^6.00 

"  One  of  the  most  fascinating  sociological  and  anthropo- 
logical studies  that  have  been  offered  of  late  to  the  public.  .  .  . 
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"Will  win  the  approval  of  all  thoughtful  readers;  and  the 
care,  patience,  skill,  and  knowledge  with  which  it  is  planned, 
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ried out,  call  for  the  very  highest  praise." 

Boston  Saturday  Evening  Gazette. 

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New  York  Mail  and  Express. 

"  A  valuable  and  interesting  book.  .  .  .  Will  attract  the 
attention  of  all  students  of  anthropology  and  all  its  kindred 
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arly readers,  it  at  the  same  time  abounds  in  value  for  those 
not  among  the  learned  classes."  Chicago  Inter-Ocean. 

"An  important  work  in  the  domain  of  anthropology  and  a 
book  of  supreme  interest  at  the  present  moment." 

Chicago  Times-Herald. 

"Not  only  a  profound  sociological  study  but  a  scholarly 
contribution  to  the  science  of  anthropology  and  ethnology  by 
an  eminent  authority."  Philadelphia  Press. 

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